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How Is Paternity Established?

A legal presumption arises that the husband is, in fact, the father, when a child is born to a married couple. This is not true with unmarried couples. Establishing paternity is important for unmarried couples in the event they break up and a parent seeks time sharing or child support, for inheritance purposes, and in a variety of other circumstances.

If the parties get married after the mother becomes pregnant but before the birth, the husband's paternity is presumed in the same manner as if the parents were married at the time of conception. If the parents marry after the child is born, they can sign a legitimation form, which grants the father the same rights as if the parents were married at the time of birth the child.

Even if parents never marry, paternity can be established voluntarily when the parents are certain of the father's identity. The father mist be certain that, in fact, he is the biological parent of the child. I have had cases where the client/father was “certain” that he was the father and after being encouraged to take a paternity test (DNA testing) he was totally surprised to find out that he was not the biological father of the child.

If the father is sure that he is the father the parties may sign a legal form called a voluntary acknowledgement of paternity, or something similar, and then file the form with the court or appropriate state agency. Executing this voluntary acknowledgement can be done right in the hospital following the child's birth, or any time thereafter. Be careful, signing these documents will cause the father to become financially responsible for the child. The father's name is then included on the child's birth certificate.

Even if a voluntary acknowledgement is not signed, the parties may later enter into an agreement with the help and advice of their attorneys that establishes the child’s paternity and resolves time sharing and support issues without having to fight paternity in court.

If neither of these voluntary procedures is an option, legal action may be necessary through the filing of a Petition to Establish Paternity. A mother may file the paternity action to establish that the man she believes to be her child's father, in fact is, or is not the biological parent. Oftentimes the mother is receiving public assistance, the state may initiate the action in order to recover its costs from the father, through the Department of Revenue.

The putative (probable), father's presence in court will be necessary, and the putative father may be required to submit to DNA testing if he contests his paternity. If genetic blood testing is Ordered the results are usually available within a few weeks. Those results can establish (or negate) paternity with about 99 percent accuracy. If paternity is established in this manner, the court will enter an order regarding the father's paternity. The father then becomes legally obligated to pay child support according to the state's guidelines, which are generally based on both parents' incomes and the needs of the children. A father may initiate legal action to establish his own paternity.

At any time in this process prior to entry of the court's order, the parties may still enter into an agreement that resolves the time sharing and financial issues relating to the child. In most instances, a father is legally required to provide financial support to his children, so it is imperative to have the assistance of an experienced attorney during these proceedings. The financial consequences are long lasting, oftentimes for eighteen years or more.

Once paternity has been established, the child obtains many legal rights beyond child support. The child can inherit from his or her father, is eligible for health insurance coverage under the father's group policy, is entitled to social security benefits if the father dies or becomes disabled, may be entitled to wrongful death benefits if the father dies as a result of someone else's negligence, and can obtain medical history information, to say nothing of the emotional benefits - to both the father and the child that may be enjoyed as a result of establishing paternity.

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