Family Law – E-Newsletter Archive
Paternity refers to the legal determination of who is the biological father of a child. While the identity of a child’s biological mother is usually known, the father’s identity may not always be as certain. Paternity issues often arise in cases involving child support, but they can also be important in relation to adoption, inheritance, custody and visitation, health care and other issues.
An action to establish paternity is a civil proceeding. Most states require that paternity be established by a preponderance of the evidence, which means that it must be more likely than not that the man is the biological father of the child. Other states, like New York, apply a higher standard, requiring clear and convincing evidence of paternity. However, due to developments in scientific testing, the different standards of evidence have little practical impact on establishing paternity.
DNA profiling is a major breakthrough in paternity testing. In a DNA test, the scientist examines the genetic material that the child inherited from his or her biological parents. First the child’s genetic characteristics are compared to those of the mother. The characteristics in the child that are not found in the mother are determined to have come from the father. If the man being tested does not have these genetic characteristics in his DNA, he can be scientifically excluded. If he does, the probability of his paternity is calculated. DNA testing can establish a father’s paternity with over ninety-nine percent accuracy and can also be done even before the child is born. Along these lines, DNA testing is generally done only when a party contests paternity allegations. For instance, the putative (or alleged) father in a paternity action, that is the basis for child support, may require proof that he is the child’s father before he consents to payment of support. In other situations, the mother may contest the putative father’s paternity, such as when a man attempts to gain custody of, or visitation with, a child he believes to be his.
In contrast, paternity may also be established by circumstantial evidence, such as when a man takes a child into his home and holds the child out to the public as his own. A married man is presumed to be the father of a baby born to his wife during or shortly after their marriage as well. Once paternity is established by DNA or circumstantial evidence, the father may be ordered to pay child support for his child. A father who is not married to the child’s mother generally will not be awarded custody of the child if the mother is providing reasonable care, but he may receive preference over third parties, such as grandparents or prospective adoptive parents.
Paternity issues, like most family law issues, can have far-reaching implications, both financially and emotionally. It is important when faced with these issues to seek the counsel of an objective, experienced lawyer who can guide clients through the legal maze of these difficult, emotionally charged issues.
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