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When "Daddy" Is Full of Doubt - How to challenge the paternity presumption

April 12, 2011

By Carl Gilmore

The decision to challenge paternity involves a series of legal and psychological choices. In making a decision, the court must balance three sets of interests: the father’s rights, the mother’s rights, and the child’s rights to a clear determination of parentage and support. Let’s examine a common scenario in which husband and wife have a child and then divorce because one spouse has had an affair. In most states, the husband will be presumed by law to be the father of the child. This assumption usually can be challenged, but it need not be. As the presumed father, the husband can seek custody and visitation, and the court will order him to pay support.

A husband who chooses to challenge paternity runs the following risks. For one thing, he may find that the child is not his. States have different rules as to what happens next, and the husband must discuss these outcomes with his lawyer. Other possibilities are (1) that the husband can be excluded from the child’s life, or (2) that he will no longer be the presumed father and will not be required to pay child support. In a few states, a husband who is not the father may maintain a parental relationship with the child.

Courts usually want a DNA test or establishment of paternity by agreement early in the divorce process. Refusal to take an early DNA test may limit a party’s ability to seek the test later. Should the husband choose to accept his parental role without a test, the decision is likely to be final as far as the husband and wife are concerned. The child, however, may have the right to challenge paternity at a later date. The mother may later use the child’s right to disprove paternity to end the parent-child relationship. If she is successful, the husband is unlikely to recover support paid under the mistaken belief that the child was his.

If paternity is an issue in your case, consider hiring a separate attorney to represent the child. This lawyer is called an attorney for the child, a guardian ad litem, or a child’s representative. Legal representation for the child makes it less likely that the child or someone acting on the child’s behalf can challenge a paternity finding later.

DNA

From a scientific perspective, DNA tests can exclude a presumed “putative” father as the parent, but cannot conclusively determine that the putative father is the father of the child. It is possible to challenge DNA test results, but there are practical limitations. Obtaining the information needed to challenge results is very expensive. Test-result challenges usually are undertaken only if there is a clear roadblock to conception or the process of taking DNA samples is somehow flawed.

Another common scenario occurs when a couple has a child, live together for a period of time, and then split up. In such a relationship, there is no legal assumption of paternity. Paternity challenges should be undertaken only after the alleged putative father states a clear goal. Often attorneys hear, “If the child is mine, I am willing pay support, but if not, I don’t want anything to do with him.” This is an understandable middle-of-the-road goal, with the result usually being a middle-of-the-road result. A father with such a goal will probably receive visitation and may be required to pay support, but is unlikely to be awarded custody or placement of the child.

Sometimes there was an obvious roadblock to conception. For example, the putative father was unavailable due to military service at the time of conception, he is sterile, or he had a vasectomy. His clear goal of disproving paternity is realistic. Should the putative father succeed in disproving paternity, he likely will be relieved of any responsibility of support and will no longer have a relationship with the child. On the other hand, the consequence of losing contact with the child may render the effort undesirable. Likewise, there is the added risk that if the issue of paternity is raised, the mother may tell the child that the putative father is fighting a paternity determination, creating a rift between father and child.

What if I do nothing?

A boyfriend may informally act as a child’s parent, providing support and visiting without a legal determination of paternity. This common arrangement often works for a while and then falls apart. The dangers in doing nothing to establish paternity are (1) there is no legal basis upon which to enforce custody and visitation rights, (2) some states require the putative or presumed father who wants to block adoption proceedings to take steps quickly to determine paternity, (3) the boyfriend has little recourse to recover support should the court later determine that the child is not his.

All states now allow parents to accept paternity through a voluntary acknowledgement of paternity, a form completed at the hospital when the child is born. If you are not sure whether a child is yours, do not sign this document. Instead, proceed immediately to court. A voluntary acknowledgment of paternity has the effect of a final determination of parentage, and overcoming this legal determination is difficult, if not impossible.

Formal court declaration

 Finally, a putative father may seek a formal court declaration that he is the father. Should he choose to accept paternity without DNA tests, he risks being unable to reverse the decision later. Thus, a father seeking to challenge paternity needs to make five choices.

1. Does he wish to maintain a parental relationship with the child?

2. Does he trust the mother’s word that he is the father of the child?

3. Will he seek a paternity determination through the courts?

4. Will he seek a DNA test?

5. Will he seek legal representation for the child?

The putative father’s choices will depend on his goals, the financial resources he has available to pursue these goals, and the likelihood of a successful outcome.

About the Author: Carl Gilmore is a family law attorney in Woodstock, Illinois, and a member of the Family Advocate Editorial Board.

This article was originally published in the September 2009, Vol 32, No. 1 issue of Family Advocate entitled "Client Manual: You've Got Choices". The manual is available online at http://www.abanet.org/. The article is reprinted here with permission of the American Bar Association.

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The contents of this web site relate only to North Carolina Law. Charles H. Montgomery and Scott Montgomery are licensed to practice only in the State of North Carolina. Charles H. Montgomery is a Certified Specialist in Family Law. Certification as a Specialist in Family Law is regulated by the North Carolina State Bar. Montgomery Family Law is located in Cary, North Carolina. Montgomery Family Law does not seek to represent you based upon your visit or review of this website.

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