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Paternity legally affirms the identity of a child's father. Paternity may be presumed, voluntarily acknowledged, or court ordered. Paternity actions are most commonly initiated by fathers for their rightful enjoyment of paternity rights (child custody and visitation) and by mothers seeking child support.

Under current laws, once paternity is established it can be difficult and sometimes impossible to refute. Therefore, if there is any question as to paternity, it is extremely important to have a paternity test as soon as paternity is alleged. Even in the case of paternity fraud, meaning the mother falsely named the biological father of her child, the defrauded "father" may remain legally and financially responsible for the child. In addition, the biological father may be denied paternity rights.

Paternity laws vary by state and are rapidly changing thanks to new technologies, lawsuits and calls for legislative reform. Contact a family law attorney to learn more about this complex area of law and how it might affect you.

Why Is a Legal Determination of Paternity Important?

From an emotional standpoint, the establishment of paternity gives a child the opportunity to develop a lifelong bond with his or her parents. As a practical matter, a legal determination of paternity may be required under the following circumstances:

  • To establish and enforce a child support order
  • To enable a father to enjoy paternity rights
  • To obtain medical insurance for a child
  • To ascertain medical history of a child
  • To obtain valid consent of a biological parent in an adoption
  • To provide access to Social Security benefits, pension and retirement benefits
  • To claim an inheritance
  • To claim wrongful death benefits in the event someone's negligence caused the father's death
  • To establish U.S. citizenship for a child born out of the country

How Is Paternity Established?

Presumption of Paternity. If a married woman gives birth to a child, her husband is the presumed father of the child. Some states will also presume paternity if the unwed couple marries soon after the birth of the child or when a man treats and represents a child as his own. In certain circumstances, some states allow the presumption of paternity to be challenged, but there are states that consider the marital presumption of paternity irrefutable. A family law attorney can help determine whether a presumption of paternity exists, and if a paternity action is necessary to either refute or solidify this presumption.

Paternity in Assisted Reproduction

Infertility affects an estimated one in eight couples. While adoption was once the only option, today, thousands of people are becoming parents thanks to extraordinary advances in reproductive medicine. While an ever-increasing number of individuals are utilizing sperm and egg donation, artificial insemination, in vitro fertilization and/or surrogacy to conceive, the laws concerning paternity can be very complicated and vary by state, with some states having no such laws at all.

The following paternity issues may require the assistance of an attorney:

  • The intended parents in a sperm donation contract have the legal rights of biological parents in some states, while other states determine parentage by statute only.
  • Single women and lesbian couples generally run a greater risk that a sperm donor can file a successful paternity suit and achieve visitation rights.
  • A sperm donor may be at risk of being sued for child support, especially in situations where the donor is not anonymous.
  • A husband who was not aware that his wife used a sperm donor may be entitled to challenge a marital presumption of paternity.
  • If a marriage ends in death or divorce, there may be challenges to legal ownership and/or paternity of embryos preserved during the marriage using cryopreservation (e.g., the biological father may no longer be considered the legal father if the former wife later implants an embryo).

If you are considering assisted reproduction, you may wish to speak with a family lawyer to learn more about how paternity will be determined for you.

Source: National Survey of Family Growth

Voluntary Acknowledgement of Paternity. Generally, when a child is born to unmarried parents, the father can make a voluntary acknowledgement of paternity at the time of the birth up until the child turns 18. In most states, a voluntary acknowledgement legally establishes paternity if it is not rescinded at the earlier of 60 days from the date it is signed or the date child support is settled. You may wish to consult an attorney before making a voluntary acknowledgement of paternity.

Court Hearing. A paternity action can be brought in family court by the mother, the alleged father, a Child Support Enforcement ("CSE") agency, an adoption agency, the representative of a minor, incapacitated or deceased child, or an intended parent in a gestational agreement (agreement with a surrogate, or gestational, mother). In a contested paternity case, the courts will order a paternity test. A paternity test can conclusively exclude the alleged father or establish paternity with a high degree of probability. If a paternity action is initiated and the alleged father fails to appear in court, a default judgment of paternity will be entered.

As previously discussed, once a legal father is established it can be difficult to challenge. If you are unsure about the parentage of a child, you may wish to contact an attorney specializing in family law to discuss the ways to establish paternity conclusively.


How Is Paternity Challenged?

Sometimes the legal father and the biological father are not the same person because of a mistake or even paternity fraud. While paternity was difficult to prove or refute in the past, modern paternity testing makes it faster and easier than ever to identify a biological father. However, "disestablishing" paternity is not as simple as a DNA test.

Some states have an irrefutable presumption that the husband in an intact marriage is the legal father. States are generally more willing to overturn a previous determination of paternity of a child born out of wedlock when later genetic testing excludes the previously established legal father. Even when a paternity challenge is possible, some states will not allow it after a child reaches the age of 2; this policy is meant to protect children who have formed a bond with a presumed "father."

If the court does overturn a previous establishment of paternity, the former "father" will no longer be liable for child support payments, and though he usually cannot get a refund from the mother, he might be able to seek reimbursement from the biological father. Paternity fraud is a controversial issue, but efforts are being made to address perceived injustice in the system. Contact a family law attorney if you suspect paternity fraud.

Did You Know?

When an alleged father is unavailable or deceased, paternity may still be established by genetic testing of relatives or even possibly the decedent's remains.

Source:United States Social Security Administration

Benefits from Stepparents

If a stepchild depends on a stepparent for at least one-half of his or her financial support, the child can receive Social Security benefits on the stepparent's earnings record. However, if the child's parent and stepparent divorce, the child's benefits terminate one month after the divorce becomes final.