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Determining Parentage

Because a parent and child are in a legal relationship, the issue of who is the parent is often litigated. As medical technology has advanced, the issue has become more complicated. The Uniform Parentage Act (UPA), enacted by several states, sets the guidelines for the presumption of parentage, recognizes the rights of unmarried parents and uses the term "child with no presumed father," rather than "illegitimate." Even states that have not enacted the entire UPA have generally enacted portions into law.

A child's legal mother is the woman who:

    gave birth to the child, or

    adopted the child, or

    has been adjudicated to be the child's mother when the child was born to a surrogate.

    The issue of the identity of a child's father, or "paternity," is often litigated. The law presumes that a man is the father of a child born to his wife, or that he is the father to a child that he acknowledged as his child before the marriage. Fatherhood is also presumed when a man agrees to be the father and is named on the child's birth certificate.

    TIP: The mother of a child and a man claiming to be the father of the child conceived as the result of his sexual intercourse with the mother may sign an acknowledgment of paternity to establish the man's paternity.

    EXAMPLE: A man who is living with the mother of a child during the child's first 2 years of life and who has represented to the public that he is the child's father, is the presumptive father. It is not necessary that the man married the mother.

    Besides a paternity test, is there another way I can prove that the child my wife had is not mine?

    Yes. However, since you are presumed to be the father, you must be able to show that you did not have access to your wife at any time that the baby could have been conceived.

    TIP: Proof of a successful vasectomy or impotency rebuts the presumption of fatherhood.

    My boyfriend alleges that he is not our son's father and has denied paternity. He refuses to submit to a DNA test. Can he still prove he is not the father?

    No. He was the alleged father because you say he is your son's father. However, by refusing to submit to a DNA test, he becomes the presumed father and can be made to pay child support.

    Can my wife and her boyfriend sign an acknowledgment of paternity to establish that he is the father of our daughter, rather than me?

    No. If a child has a presumed father, the acknowledgment is not valid. Husbands are always presumed to be the father of their wife's children. Your wife's and her boyfriend's acknowledgment to the contrary does not affect this presumption.

    How do I establish that a man is the father of my child?

    You file a suit to establish or adjudicate paternity in the state where you and the child are living.

    TIP: A suit to establish paternity cannot be filed once the child becomes an adult.

    SIDEBAR: If the child already has a presumed father, a suit to adjudicate paternity, i.e., claiming a different man is the father, must be filed by the time a child is a certain age. For instance, the law in a state might require the suit to be filed by the child's fourth birthday. After that time, the presumed father's parental rights cannot be challenged by alleging that another man is the father.

    My child has not been born. Can I file a suit to adjudicate paternity?

    Yes. You may begin the proceeding before the birth of the child, but the matter will not finalized, i.e. the identity of the father will not be determined, until after the child is born.

    My wife and I have never lived together, and I know her daughter is not my child. Can I obtain a legal decree of some sort to establish that I am not the father?

    Yes. By virtue of your marriage, you are the presumed father. However, because you did not live with your wife when the child was conceived, you can bring a suit at any time to disprove paternity. Your paternity can be easily disproved with genetic testing.

    Do I have to submit to genetic testing in a suit to establish paternity?

    Yes. If the court orders you to provide a DNA sample, you must provide one or risk being in contempt of court.

    SIDEBAR: Genetic testing is not ordered over the man's objection until he has been notified of the proceeding, the court has held a hearing and listened to evidence, and the woman has established sufficient facts to allege the man is the father of the child.

    SIDEBAR: This testing is not considered to be a violation of a person's right to privacy or due process under the constitution. While blood and DNA tests may be considered invasive, the state has an interest in establishing a child's paternity in order to determine who has the duty to support the child.

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