When an unmarried couple has a child, the child’s birth is all that is required to establish the mother as the legal parent of that child. However, the situation is different when it comes to the child’s father. The best way to establish paternity is to sign a voluntary acknowledgement of paternity, which ensures that the father is named on the birth certificate. If that is not done, it may be necessary to request an order of paternity from the court to establish parentage at some stage in the future.
Why Is It Important to Establish Paternity?
Paternity is automatically established if the parents are married to each other when the child is born, but not if the parents are not married to each other. Establishing the father’s paternity as soon as possible after the child is born protects the mother, the father and the baby. It helps to ensure that the child receives financial support from the father and is eligible to receive benefits through the father, such as health benefits and life insurance benefits. Most importantly, it greatly reduces the possibility of the father being denied custody or visitation in any future court proceedings. Establishing paternity also gives the child personal benefits, such as greater self-esteem and a secure sense of identity.
How to Establish Paternity
Under U.S. Department of Health and Human Services regulations, all states must offer unmarried parents the opportunity to establish paternity by voluntarily signing an acknowledgment of paternity. This may happen at the hospital when the child is born or at a later time. The form must be signed by both parents. The only other requirement is that the father presents photo ID to the birth registrar before he signs the form.
In some states, this is a requirement before an unmarried father’s name can be included on a child’s birth certificate. A voluntary declaration of paternity signed by both parents and sent to the appropriate agency, such as the local vital statistics unit, has the same legal effect as a court order, which means it is sufficient to establish the father’s rights. This also ensures that the child’s original birth certificate includes the father’s name.
If you cannot establish paternity at the hospital when the child is born, the acknowledgement of paternity form is available from your state's office of vital records, local health department clinics, child support offices and departments of social services.
Presumed Parentage Laws
When trying to establish paternity, the situation may be complicated if there is already a presumed father of the child. Presumed parentage laws vary by state. In California, a person is presumed to be a child's father if he was married to the child’s mother when the child was conceived or born; he attempted to marry the mother even if the marriage was not valid and the child was conceived or born during the marriage; he married the mother after the birth of the child and agreed either to support the child or have his name on the child's birth certificate; or he welcomed the child into his home and openly acted as if the child was his own.
Whether there is a presumed parent or not affects time limits for establishing paternity. For example, in Texas, a paternity suit can be brought at any time if the child does not already have a presumed father – even when the child is an adult. However, if the child has a presumed father, the paternity suit must be brought within four years of the child's birth unless the presumed biological father and mother did not live together or engage in sexual relations during the likely time of conception or if the presumed father was tricked into believing he was the father.
Other states have different rules and time limits to establish a presumed father. In most states, a presumption of paternity can only be rebutted by a court adjudication, by the filing of a valid denial of paternity by the presumed father, or by a valid acknowledgment of paternity filed by another father. In some states, such as California, a child can end up with more than two legal parents, if the court finds this situation to be in the child's best interests.
How to Get a Court-Ordered Paternity Test
If the mother of the child refuses to sign the voluntary declaration of paternity, the father may have to file for an order of paternity from the court. Similarly, if an unmarried father refuses to support his child financially, the mother can seek a paternity order from the court. If the father is not named on the birth certificate, and there is no signed acknowledgement of paternity, the court can order genetic testing to confirm paternity before making an order in respect of child support.
A DNA test may also be ordered if the unmarried father is trying to get custody or visitation rights with the child. Before those rights can be granted, he must be established as the father of the child. Once a father's paternity is established, he has a legal responsibility for the child, and his legal rights to the child are equal to those of the mother.
The first step toward getting a court-ordered paternity test is to file the correct form with the court. Depending on your state, this form may be called a Petition to Establish Parental Relationship, a Petition to Establish Paternity or a Petition to Adjudicate Parentage. You can get this form from the clerk's office at the district court in your county. Complete it in full, hand it in to the clerk's office and pay the filing fee. This varies by state, so ask the clerk's office for the amount of the current fee.
The court will provide the parties with all DNA test rules and information needed to get the tests done. The child, mother and father are all tested, which generally involves taking a swab from the inside of the cheek. The samples are sent for lab testing, and results are usually available within a few weeks. Each state has its own requirements for proof of paternity from genetic tests. In many states, only test results of 99 percent or higher are accepted as proof of paternity. In Virginia, the threshold is 98 percent.
If your local department of child support services performs the test, normally there is no charge to either party, although if the tested man is found to be the father he may have to pay the fee. If a court orders testing, the court will also decide who will pay the fee, which could be several hundred dollars. DNA tests carried out at home or in a private medical facility are not accepted by the court.
If DNA testing proves that the man is the biological father of the child, the court will make an order adjudicating parentage. This order makes him the legal father and adds his name to the child's birth certificate. The court can then make orders in respect to custody, visitation and child support. The court will only make an order it deems to be in the child's best interests. It may also change the child's last name to the father's name, although in some cases the child retains the mother's last name.
- Virginia Department of Social Services: Facts About Establishing Paternity
- California Courts: Parentage FAQs
- California Courts: Parentage/Paternity
- California Courts: Forms
- Attorney General of Texas: Court-Ordered Paternity
- Texas Constitution and Statutes: Texas Family Code Chapter 160 Uniform Parentage Act