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Establishing Paternity – Legal Actions - Q & A

The determination of paternity carries with it major implications, both financially and psychologically for both the child and the biological parents. The laws surrounding paternity suits are state specific and can vary significantly between respective jurisdictions.

Family law generally presumes that a married woman's child belongs to her husband. Absent a finding to the contrary, the husband must support the child unless he can prove in court by a preponderance of the evidence that he is not the biological father. The following will provide some of the most common questions and answers regarding these types of legal action.

What Is Paternity Legal Action?

A civil court action to judicially determine paternity establishes the legal identity and corresponding obligations and rights of the natural father usually for purposes of determining the extent of child support legally owed by the father. While the identity of a child's biological mother is easy to determine, the establishment of the father's legal identity is much more problematic. Paternity issues not only involve child support claims, they can also relate to other legal issues such as inheritance, child custody, child visitation, and health care rights.

What Is The Standard Of Proof For Paternity Actions?

Legal actions to establish paternity are civil proceedings and therefore the burden of proof necessary to establish paternity is based on the evidentiary standard known as a preponderance of the evidence. This means the plaintiff to a paternity action must prove the likelihood of paternity by a margin of 51% or more before the court can make a positive legal finding of paternity. Some states do apply a higher standard of proof for paternity, but these states are clearly in the minority.

Proving Paternity – What Is DNA Testing?

DNA testing is usually ordered if either party to a paternity action denies or asserts the paternity of the other. DNA testing can establish a father's paternity and is over ninety-nine percent accurate. The determination of paternity through DNA analysis has become a common and accepted means in determining the identity of the biological father. DNA is the genetic code of life found in all cells and carries the inherited features and instructions from its biological parents to the child. The process requires that the child's genetic characteristics be first compared to those of the mother. Once determined, the DNA traits or characteristics in the child that are not found in the mother are concluded to have come from the father.

Is DNA The Only Way To Determine Paternity?

No, but it is considered the most reliable and conclusive method of determining paternity. It can also be determined by circumstantial evidence. For example, if the alleged father has agreed to live with the child, an inference can be created that supports a finding of paternity. The same is true if the alleged father has taken measures to support the child. There is evidence of paternity if the alleged father takes those actions, which are considered, by the court to be consistent with those of a parent. In many states, there is a rebuttable presumption of paternity if the baby was born to the wife during the marriage.

Is DNA Testing Expensive?

The cost of paternity testing has gone down in recent years but can still be a costly matter. Paternity testing from an accredited laboratory costs between $500.00 and $2,000.00, depending on your location and the type of paternity testing used. The types of paternity test range from blood collection to tissue sampling. Some testing facilities are now using hair analysis to determine the genetics of the relationship. Results from the blood test are usually available to the patient in about two weeks.

Can Court Order Child Support Before Paternity Is Proved?

Yes. If the paternity of a child is challenged by the alleged father, temporary child support may be awarded to the mother while it is judicially being determined whether the alleged father is the biological father and therefore liable for child support payments and other obligations. If the DNA test is determined to be negative, in most jurisdictions, any child support already paid by the alleged father is usually ordered returned to the alleged father by the court.

What Is The Age Requirement For A Child To Be DNA Tested?

There is no age requirement. It is legal to test paternity even on newborns by testing the blood from the umbilical cord. The test is both painless and quick for both the child and mother and is usually performed in the delivery room. If the child is not a new born, most paternity testing facilities recommend swabbing of the interior of the child’s mouth.

Can A Non-Biological Parent Be Granted Custody?

Under certain circumstances and depending on the jurisdiction, a spouse who is not a legal parent may still be granted partial custody and/or visitation rights under the legal doctrine known as equitable parenting. Although highly unusual in family court, a judge may apply this legal theory if a spouse and child have a demonstrably close relationship with each other and where the biological parent consents and encourages such a relationship. If the court does grant the equitable status, then depending on the amount of child custody or the degree of visitation granted to the equitable parent, the court will also require the equitable parent to pay child support and other legally based parental obligations.

Is Paternity Testing Covered by Insurance?

No. Insurance companies do not consider paternity testing to be medically necessary to the insured’s health and therefore is not considered to be a covered occurrence under most if not all policies of insurance.

For more information on legally ending a marriage, paternity issues and family law rights in a divorce matters, visitation and child support obligations, divorce proceedings, alimony, and determination of property rights in contested divorces, visit GotTrouble.com