Chronology: Establishing Paternity

The general legal presumption is that the husband is the father of the child when a child is born from the marriage. However, there is no such presumption in case of unmarried couples. In case the unmarried couple breaks up, then the issue of paternity can be an important factor for deciding who gets custody of the child and who pays child support. Establishing paternity may also be important in a number of other circumstances.

In case of a married couple where the marriage took place after the wife became pregnant, the husband will be presumed to be the father if the marriage took place before the birth. Even if the couple is married after the birth of the child, the couple can sign certain forms that will give them the same rights as if they were married when the child was born.

In case the parents do not marry, the parents can sign the voluntary acknowledgement of paternity form. This form may be known by different names in different jurisdictions. Depending on the local laws, it must be filed in a court or a state agency. This form is generally signed and filed immediately on birth of the child or any time after that. Once this form is filed, the father’s name is included in the birth certificate of the child.

Even if the parents have not signed this form, they can subsequently enter into an agreement with the assistance of their attorneys establishing paternity and resolving the issues of custody and support.

If the man denies being the father of the child, the mother can file a paternity suit. Generally a paternity suit is in the form of a civil lawsuit. The exact procedure varies from state to state. In most states, paternity must be proved by a preponderance of evidence. In states like New York, the law requires clear and convincing evidence that the man is the father. The recent developments in DNA testing and other scientific methods of determining paternity have made it easier to establish paternity as required by state law.

By the seventies the courts accepted scientific tests to compare blood types of a mother, a child, and a suspected father. Using ABO blood typing and the analysis of other protein markers in blood, one could statistically show the relationships of a mother, a child, and a defendant. For many years these tests were the best means of proof at our disposal—but they ultimately proved to be a narrow scientific window into a far more powerful way of determining biological relationships. In attempting to demonstrate that a man is a child’s father, test results are used to formulate a “paternity index.” If the index resulting from this procedure is 99.9 or higher, the man is presumed to be the child’s father. The development of DNA testing is seen as a major development in paternity determination. The genetic characteristics of the child are first compared with the genetic characteristics of the mother and the characteristics of the child that not found in the mother are considered to have come from the father. If the man’s DNA does not have these characteristics, the man is not the father of the child. If any of the characteristics are present, then the probability of the man being the father are calculated. DNA testing has an accuracy rate of over 99%.

Even when a paternity suit is pending the parties may enter into a settlement agreement resolving the issues of custody and support. Generally the father has to financially support the child. There isn’t much of a negotiating room. One alternative would be to offer a onetime lump sum payment to the mother in exchange for agreement not to seek additional child support in the future. The mother can use this lump sum and make investments that would assure returns in the future. However from the mother’s point of view, the main disadvantage of accepting this type of settlement is that no one knows how the needs of the child may change in the future. Courts also tend to scrutinize such settlements before approving them. There have been cases where the courts have invalidated or rejected such settlements.

Once paternity is proved, the father can be ordered to pay child support. The child will have the right to inherit from the father and all other rights which a biological child will have vis a vis the father. Unmarried fathers will generally not get custody if the mother is willing to take care and is capable of taking care but the unmarried father will be preferred over third parties including grandparents and other relatives.

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