Themis Family Law - Paternity

----Paternity----

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---Paternity Suits---

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Is Maternity Normally in Question?

No, maternity is not normally in question—mother is identifiable at birth

Obligations of Identified Fathers

Once the legal father is identified, he will have:

1. Child support obligations; and

2. The right to pursue custody and visitation.

Paternity Suits

The mother can legally identify the father by bringing a paternity suit.

---Blood Tests---

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Can a Court Order a Paternity Test

Yes, the court may order a paternity test.

Indigent Fathers and Paternity Tests

If the father is indigent, the court will pay.

Other Evidence of Paternity

If a blood test is not possible, other evidence might suffice:

1. Medical testimony based on the probability of conception;

2. The defendant’s own knowledge of paternity;

3. The physical resemblance between the child and the defendant; or

4. Prior statements by deceased family members

---Time Limit on Paternity Suits---

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Time Limit on Paternity Suits

States can impose a statute of limitations on paternity suits but must at least offer a reasonable opportunity.

Requirement for a State to Impose Time Limits on Paternity Suits

Must be substantially related to the purported government interest (e.g., preventing fraud).

Does Paternity Need to Be Established Before the Father Dies

Yes, paternity generally needs to be established before the father dies.

----Marital Presumption----

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Marital Presumption Defined

If a married woman gives birth, her husband is presumed to be the child's father

Gender Neutral Requirement for Marital Presumption

Constitution requires that this presumption applies in a gender-neutral manner

---Rebutting the Marital Presumption: Wife---

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States Allowing Wife to Challenge Husband's Paternity

About half the states permit a wife to challenge her husband's paternity by presenting evidence that he is not the father of the child

Evidence for Challenging Paternity

the husband:

1. Is impotent

2. Is sterile

3. Could not have engaged in intercourse with the wife during the probable time of conception

Some States' Allowance for Excluding Evidence (Best Interest of the Child)

Some states allow the court to exclude such evidence if disestablishing paternity would be contrary to the best interests of the child.

---Rebutting the Marital Presumption: Husband---

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Allowance for Husband to Rebut Paternity

Some states allow the husband to bring a paternity suit to disestablish his paternity—but courts are generally hesitant to do so, especially when the man is the only father the child has ever known and a significant amount of time has passed.

---Rebutting the Marital Presumption: Alleged Biological Father---

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Non-Biological Challenge to Paternity

With varying statutes of limitations (often two years from the child's birth), some states allow the alleged biological father to bring a paternity suit.

Prohibition of Challenge to Paternity if Wife Refuses to Join

If the mother is married to another man and refuses to join, a state may entirely prohibit the alleged biological father from bringing a paternity suit regardless of when filed.

---Holding Out---

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Holding Out

Paternity can also be established if:

1. The parents marry after the nonmarital child's birth;

2. The father consents to putting his name on the child's birth certificate ; or

3. The father holds himself out to be the father in some other way.

---Estoppel---

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--Estoppel of Wife--

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Estoppel of Wife

In some states, the wife can be estopped from challenging the paternity of her husband.

--Estoppel of Husband--

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Estoppel of Husband

A husband who is not the biological father may be estopped from denying his paternity if:

1. The husband promised to provide for the child;

2. The wife relied on that promise; and

3. The wife would suffer economic detriment from relying on that promise.

---Jurisdiction over an Out-of-State Parent---

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Jurisdiction over an Out-of-State Parent

Jurisdiction to bring a paternity suit tracks jurisdiction to issue a child support order under UIFSA.