Legal Procedure Necessary to Test Paternity on Deceased Father

[Izadorasmom]

My question involves paternity law for the State of: Arizona

I am curious to know what legal (if any) steps are to be taken when there is a paternity test needed to determine whether or not someone is legally considered "next of kin" after a man dies?

Specifically, if it is more than a month or 2 since time of death, who would legally be responsible for obtaining the DNA sample from the deceased and how would I find out how this was done? Would it be the funeral home? The medical examiners office? From everything I have researched it is difficult to get a proper DNA sample once the body is dead for that long.

ANY help or insight on the legal steps to be taken would be MOST helpful.

Thanks alot!

[Dogmatique]

Assuming the body was not cremated the petitioner would need an extremely compelling reason to have the body exhumed for a DNA sample.

Courts are extremely reluctant to order exhumations outside of criminal matters.

So...what's the back story?

[Izadorasmom]

Assuming the body was not cremated the petitioner would need an extremely compelling reason to have the body exhumed for a DNA sample.

Courts are extremely reluctant to order exhumations outside of criminal matters.

So...what's the back story?

It's a LONG one! LOL. But you asked! I will keep it as brief as possible with hopefully all needed facts included!

I am a widow with a minor child. My husband and I seperated in early 2003. In march of 2005 I finally filed for divorce since I knew he was incarcerated at that time and I also knew he would NOT be responding to the divorce to save me hassle of steps when parent cannot be located. I knew that once released with no probation he would leave the state and not wish to be found. In august of 2005, the county granted me my divorce on default.
The last day of 2007, I learned from the local pd property room that he had committed suicide only 3 days after being released from jail. He was homeless, and hung himself in the backyard of a vacant house. The city PD told me that they went to an old address but we no longer lived there. They then gave up I guess....the case went to the public fiduciaries office to find the "next of kin"

Mind you....I was in the same county! I had a divorce IN PROCESS but not finalized (nor was the child support order for our daughter) yet when the fiduciaries investigator did a SS# search, a lein on my husbands SS# from CA. showed up as he owed them ALOT of money for a child that he fathered at age 18. The mother of that child was married at the time and had her husband on the birth cert....other than my husband ignoring the original order for child support paternity had never been established! No paternity test OR his name on the birth cert. but the fiduciaries office notified the case worker who then notified the mother and child. The child was under age 18, however the funeral home allowed for her (with mothers consent) to sign a petition to cremate and pick up his remains!
I was told that paternity was established by tests done after his death. He was not cremated until they signed, which was at least 4-6 weeks after his actual death.

So....if that all made any sense to you (LOL) then my question is WHO WOULD HAVE PERFORMED THE DNA TEST ON MY DEAD HUSBAND AND HOW OR IS THAT LEGAL TO DO? WOULDN'T PATERNITY NEED TO BE DETERMINED SINCE HE WAS NOT ON BIRTH CERTIFICATE AND SHE AS UNDERAGED CHILD WAS PERMITTED TO SIGN CONSENT TO CREMATE? HER DNA WAS SENT THRU THE MAIL BUT I DO NOT KNOW ANYTHING MORE THAN THAT.

Hope I didn't leave anything out. I appreciate your help.

Thanks!

[jk]

From everything I have researched it is difficult to get a proper DNA sample once the body is dead for that long.
!

Bobby Fischer was just recently exhumed (a couple weeks ago I believe) for a DNA sample due to a paternity claim. He died Jan 17, 2008. Dna can be obtained for quite awhile.

not saying dogmatique is wrong about courts not exhuming for paternity. The Bobby Fischer situation deals with a lot of money and is in another country so the rules are almost assuredly different.

[Dogmatique]

OP's ex was cremated eventually ...I guess my exhumation speech was a tad moot

Anyway.

If Ex was ordered to pay child support paternity WAS legally established - and hence the daughter probably did have the right to the body.

[Izadorasmom]

Bobby Fischer was just recently exhumed (a couple weeks ago I believe) for a DNA sample due to a paternity claim. He died Jan 17, 2008. Dna can be obtained for quite awhile.

not saying dogmatique is wrong about courts not exhuming for paternity. The Bobby Fischer situation deals with a lot of money and is in another country so the rules are almost assuredly different.

Ok...but I am asking about a body that was NOT buried NOR cremated at the time. From what I have read, the "standard" DNA samples (ie: saliva, fingernails, hair follicle, blood) MUST be taken and tested within like a few days of the death! IF you would have read both my posts you would understand that my primary question and concern was WHO would have done the testing and what legal procedure is necessary to do so in order for the deceased's "next of kin" to be a determining factor.

OP's ex was cremated eventually ...I guess my exhumation speech was a tad moot

Anyway.

If Ex was ordered to pay child support paternity WAS legally established - and hence the daughter probably did have the right to the body.

Ok...well he technically is NOT my ex since my divorce is null and void considering that the stupid county I live in divorced me from a DEAD MAN!
Yes there was a child support order HOWEVER no paternity was ever done and she knowingly put her husband on the daughters birth certificate.

Really that part is NOT relevant to my actual question! MY QUESTION IS: IS THE FUNERAL HOME ALLOWED TO MAKE THAT DECISION? WOULDN'T THERE BE SOME SORT OF LEGAL PROTOCAL FOR THE PATERNITY TESTING? WHO WOULD PERFORM THE DNA TESTING?

[jk]

do you even know if a DNA test was actually done?

Before you do much of anything, you need to know if you have standing to seek the answers so, why are you needing the answers? If you do not have standing to seek the answers, you might not ever find your answer.

WHO DECIDES THAT IS ALLOWED?

a court would have to issue an order. I know you said there were no court orders but how do you know? Have you checked the courts where the other mother lives?

WHO WOULD HAVE ACTUALLY PERFORMED THE ACT OF ACQUIRING DNA FROM HIM AND WHAT LEGAL PROCEDURE IS NECESSARY TO DO SO?

that would depend on who ordered the test and when it was taken.

a lein on my husbands SS# from CA. showed up as he owed them ALOT of money for a child that he fathered at age 18. The mother of that child was married at the time and had her husband on the birth cert....other than my husband ignoring the original order for child support paternity had never been established!

It would appear that the courts did make a determination of paternity. It may not have been based on DNA. Maybe it was. Maybe your husband didn't tell you everything. Maybe the courts simply assigned paternity based on his failure to respond.

[Dogmatique]

It would appear that the courts did make a determination of paternity. It may not have been based on DNA. Maybe it was. Maybe your husband didn't tell you everything. Maybe the courts simply assigned paternity based on his failure to respond.

That certainly sounds like what happened...

[jk]

That certainly sounds like what happened...

I suspect that as well. The courts would not have placed a child support order without first assigning paternity and since there was a CS order in place from apparently long ago, the courts had to have made the call. I suspect that the guy on the BC took a test and it proved he was not the father and when the mother named the OP's husband and probably only him, when he ignored the court order to submit to a test, they found him the father by default.

[Izadorasmom]

I suspect that as well. The courts would not have placed a child support order without first assigning paternity and since there was a CS order in place from apparently long ago, the courts had to have made the call. I suspect that the guy on the BC took a test and it proved he was not the father and when the mother named the OP's husband and probably only him, when he ignored the court order to submit to a test, they found him the father by default.

YES! That is exactly what happened. I know that. I knew that before we were married. That is not what I am trying to determine.

What I want to know is this...

I will set a scenario ok?

The mother of the other child is called and told that the father of her 14 year old daughter is dead. suicide. The public fiduciary has the job of finding the next of kin to avoid the county paying for any burial. The mother tells them that the deceased man HAS A WIFE (she was unaware that we had a child together as well) the funeral home director was in contact with her alot. I know this due to the fact that I went to the fiduciaries office and demanded a file....I was given some notes made by case worker.

I asked the mother how she and the child were allowed to sign for the cremation? did they just take her word on the child actually being his? she then told me that they did a DNA test on him before they would let her sign the consent to cremate. she showed me the paternity test. The funeral home director is the one who did this.

So again...my question would be....Was that legal? How can the FUNERAL HOME DIRECTOR make that decision? And, WHO then would have actually taken the DNA from him? Would a court order need to be in place for this?