Establishing and Contesting Paternity

The law of paternity governs the legal relationship between a father and his children. It applies to biological children, adopted children, and children for whom a legal presumption of paternity arises, such as when a child is born within an intact marriage.

Parents may commence a paternity action for a variety of reasons. For example,

  • It is not uncommon for lawyers to be called by men who have been served with notice that they are the subjects of paternity actions, meaning that they are alleged to be the father of a child.
  • It is also not at all unusual for men to contact lawyers to inquire how they can establish the right to parenting time (visitation) with their children, born out of wedlock.
  • A child's surviving parent or guardian wants to establish paternity in order to obtain government benefits upon the death of the child's father.

Where parents agree about parentage, they may voluntarily establish paternity without having to go to court. Where parents disagree, or a third party contests the parentage of a child with two legal parents, a paternity lawsuit will be necessary to resolve the paternity dispute.

Contested Paternity Actions

A contested paternity action attempts to resolve questions of paternity when the parents cannot agree as to the identity of the child's father. Contested paternity actions arise either as private actions, or are brought by the state.

  • A private action for paternity is often brought to secure child support payments from the father, or to obtain custody or parenting time with the child.
  • A paternity action brought by the state usually follows a mother's petition for state assistance, although a few states offer broader assistance to parents who want to establish paternity. The state will seek a paternity order so that it may obtain full or partial reimbursement of any grant of aid from the child's father. In most states, the paternity action is handled by a prosecutor's office.

Pending the resolution of a paternity case, a person tentatively identified as the child's father is referred to as the putative father . ("Putative" is a fancy term meaning "generally regarded as".)

Challenging Paternity

When a paternity action names the putative father as a defendant, the putative father has the choice of either consenting to the entry of a paternity judgment, or of contesting the action - asserting either that he is not the father, or requesting that DNA tests be performed to confirm his paternity.

If a putative father fails to request paternity testing, or fails to appear in the court proceeding to dispute the allegations in a paternity petition, the putative father may potentially be declared to be the child's legal father even in the absence of a biological relationship with the child.

Paternity Testing

In most disputed paternity cases, the court will order DNA testing of the child and putative father. Paternity testing is now almost always performed through a DNA test based upon a cheek swab, and it is not ordinarily necessary to draw a blood sample.

If the putative father disagrees with the result of a court-ordered paternity test, he has the right to seek and introduce an independent paternity test.

When a paternity action names the mother as defendant, she faces the same essential choices as the father. She may either consent to having the putative father named as the child's legal father, or may request paternity testing to confirm that he is the father.

In the most unusual paternity litigation in which I have been involved, two men brought a combined paternity action against the mother of a child. Following DNA testing, it was established that neither man was the child's biological father.

Non-Contested Paternity Actions

Some men are confident that they are the biological father of the child, or want to maintain a legal relationship with the child whether or not they are the father.

Acknowledgment of Paternity

If both parents agree, and there are no unusual circumstances such as the mother's being married to somebody else, paternity can normally be established through the parents' execution of an acknowledgment of paternity.

The acknowledgment is a sworn form, signed before a notary, that established paternity without any need to go to court. Parents can usually arrange to execute an acknowledgment before they leave the maternity ward.

Parents have a short period of time, usually around sixty days, during which they may rescind an acknowledgment of paternity. If a timely rescission is filed, the affidavit of paternity becomes void. If no timely rescission is made, the acknowledgment becomes a binding declaration of parentage.

No matter how certain the father may be about his paternity, the best approach is for the father to refrain from signing an acknowledgment until he is certain of his paternity or of his willingness to parent the child without first confirming parentage.

Court Action

The parties may also obtain an order of paternity through a court. If paternity is not in dispute, the parents may agree to the entry of a paternity order.

  • Once a court issues a custody order, the father may seek custody or parenting time (visitation) with the child.
  • The order also creates a legal duty for the father to provide child support.

Effect of a Paternity Determination

When a father consents to the entry of a paternity order, he should regard it as a commitment for life.

  • Most jurisdictions make it difficult and perhaps impossible to escape the consequences of a court's paternity order, including the requirement that you pay child support, even if you can later prove that you are not the child's biological father.
  • If there is any chance that you will resent the child, or will want to break off your relationship to the child, should you ultimately learn that you are not the child's biological father, you should obtain a DNA test before admitting that you are the child's father.

Some studies suggest a non-paternity rate for children born inside marriage of twenty percent or more. Outside of marriage, you have even fewer assurances. If you consent to being named as the child's father, be sure that you are willing to live up to that designation no matter what you may later learn.

Establishing Paternity When the Father is Deceased

In the event that a child is born out of wedlock, and the father is not identified on the child's birth certificate, by court order, or through a legally binding acknowledgement of paternity, it may be necessary to establish paternity following the death of the father. Even if the father supported the child in life, and had a relationship with the child, a government agency may require actual proof of parentage before extending survivor's benefits to the child.

Similarly, if there is no provision for the child in the father's will, it may be necessary to establish paternity in order to obtain a share of the father's estate for the child as a "pretermitted" heir (an heir accidentally excluded from a will, often because the heir was born after the will was drafted).

  • In some cases, there may be access to the father's DNA that may be used for purposes of paternity testing, perhaps from a preserved tissue sample held by a hospital.
  • Where the father's DNA is not available, it may be possible to compare the child's DNA to other close relatives of the father, such as the child's grandparents or the father's other children.

DNA testing of close relatives can establish paternity with a high degree of probability, and will often satisfy the needs of any court or government agency.

Paternity Mistakes and Fraud

Due to the availability and accuracy of DNA testing, in recent years many states have become more receptive to paternity challenges even where a child has an established legal father.

  • In a minority of states, a parent or minor child may be able to bring a paternity challenge at any time through the date of the child's eighteenth birthday.
  • In most others, there is a limited window to challenge paternity following its legal establishment.

In some states it may be possible for a biological father to bring a paternity action even though the child has a legal father. A third party paternity action may be possible even after the parents themselves are legally barred from disputing paternity, whether by virtue of the passage of time or as the result of prior litigation or court ruling.

In most states, a court that hears an effort to reverse a prior paternity determination has the discretion to deny the petition if it finds that disestablishing paternity or substituting another father as the child's legal father would be contrary to the best interest of the child.

The laws pertaining to disestablishing paternity based upon allegations of fraud or mistake vary significantly between states, and as the time limit for bringing such an action may be short. Once a legal father learns of the possibility of non-paternity or a potential biological father learns that another person may be named as the child's legal father, it is important that they promptly discuss the facts a lawyer to determine what remedies are available and to avoid missing deadlines.

Copyright © 2014 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.