Every child has biological parents. They may be the same or different than the legal mother and father. At birth, it is clear who the mother is. If she is married, the law presumes her husband is the legal father, and he has certain legal rights and responsibilities. If a mother is unmarried, there may not be a legal father yet. “Paternity” refers to the process of determining who is a child’s legal father.
Benefits of Establishing Paternity
Establishing a child's legal father provides the child with many rights and benefits, including:
• helps the child get government benefits like social security payments if the father dies or becomes disabled as well as benefits for children of military veterans if applicable;
• helps the child get coverage under the father's health and life insurance;
• the child can get access to family medical history if needed in an illness, which is important because many illnesses run in the family;
• if the parent dies, the child may be able to inherit;
• helps the child get financial support from both parents; and
• by knowing who his or her parents are, a child gains emotionally.
Establishing paternity can benefit the father, and both parents, too. The process helps the father obtain legal rights to spend time with his child and join in making parental decisions. Before the child can be placed for adoption, the father's rights will have to be considered. Establishing paternity also helps both parents work out other parental and financial obligations. In addition, there is often long-term emotional benefit to accepting responsibility for a child.
Even if the child's parents plan to get married at a future date, or are living together, it is still important to establish paternity to guarantee the child's -- and the parents' -- legal rights.
How Paternity Is Established
For unmarried parents, there are two main ways to decide paternity, or fatherhood. Most often both parents sign a legal form saying they are the mother and father. This form goes by different names in different states, including Acknowledgment of Paternity, Voluntary Paternity Acknowledgement, and Declaration of Paternity. By whatever name, the form has information on the child, the parents, and the birth. A witness or notary must also sign. Then the form is filed with the state. If the parents have any doubts about who is the child's biological father, they should not sign the form.
The other main way to establish paternity is by having a court decide. A paternity action can usually be brought by various parties, including the mother, father, child (or his or her representative), and the state. The most common paternity case occurs when a man denies he is the father. In court, whoever claims or denies being a parent presents evidence. The court can require a genetic test. Genetic testing can be done easily, and is often done by either a cotton swab rubbed inside the mouth or a blood test. Samples are taken from both the man, mother and child. The results of these tests determine the probability of a certain man being the father. Genetic tests can say with 100% certainty that a man is not the father. They can say with over 99% certainty that a man is the child's father. Once all the evidence is in, the court decides and makes an order deciding who is the legal parent. If the man is found to be the father, he will be required to support the child.
When Paternity Can Be Established
Paternity can be established at any time after a child is born. However, if a man or woman want a court to establish paternity, in most states the paternity action must take place before the child reaches adulthood. In order to provide the maximum benefits for the child and his or her parents, a paternity test should usually start as soon as possible.
Sometimes an adult does not want legal paternity established. The child may be from a relationship that ended, and one or both parents want to be free of commitment. In making this decision, the law encourages parents, and requires courts, to do what's best for the child.
Court Decisions on Paternity
Societal changes have created new kinds of family relationships and more disputes and court decisions on paternity. In one case, a Nebraska man asked a court to find he was the father of a boy born to a woman. The two had not married and the woman objected because she wanted to give up the child for adoption. A lower court denied the man's petition, ruling the matter should be handled in adoption court. The state Supreme Court got involved and reversed, saying the child had not yet been given up, therefore the man’s petition could proceed.
In another case, a Florida man asked a court to rule he was the father of a child. The mother had been married to another man -- but separated -- when the child was conceived and born. Using an historic rule that a child born to a married couple is presumed to be theirs and no challenge may be heard, even from a true biological father, the lower court rejected the man’s petition for paternity. But a higher court looked at today’s world and said that applying the old rule would be “an outrage to common sense” and hurt the child’s welfare. The appeal court said the man’s paternity action could proceed.
Establishing paternity provides many emotional and other benefits to both the child and parents. People who want to establish paternity should seek legal help when doing so. There are very important legal consequences for both the child and parents, and it is important that all steps in establishing paternity be followed in accordance with the law.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.