Paternity Tests & State Laws

• The procedures by which paternity tests are considered by a court for purposes of establishing the identity of a child's father will differ from state to state. However, all states have in place laws that permit either the mother of a child or the child's putative father (the man who assumes he is the father of a child) to get a court order for paternity testing, should there be any question about the identify of a child's father. The most typical circumstance in which paternity laws are exercised are to establish the identify of a child's father so that both parents are held jointly responsible for the financial support of a child, rather than placing the burden solely on the child's mother or relying on state financial aid to pay for the child's care. However, paternity laws are also in place so that a putative father can establish and maintain a relationship with his child through court-mandated custody or visitation once paternity is established.
  
  

Proof of Paternity

• When establishing the identify of a child's father, the majority of states' statutes require that paternity be established by a preponderance of the evidence, meaning that a putative father is "more likely than not" the father of a child. There are also states that insist that clear and convincing evidence be used to establish paternity, the same standard used in many civil trials. For example, Colorado statute authorizes a court to consider if there was evidence of sexual intercourse between the child's mother and putative father at the time of conception, as well as expert opinion regarding the probability of paternity based on the duration of the mother's pregnancy. These provisions are not uncommon in other states' laws. However, the court's consideration of DNA paternity testing trumps all. Such testing provides scientific evidence to the court that is almost 100 percent accurate, making other factors irrelevant--and rather outdated--when it comes to establishing a burden of proof.
  
  

The Paternity Suit

• State laws are in place that allow the putative father to acknowledge paternity by signing an acknowledgment of paternity form, which is usually presented to him by a hospital at the time of a child's birth or shortly thereafter. Such a form is entered by the court and for all legal purposes, the putative father assumes the same legal rights and responsibilities he would have had the child been born in wedlock.
  
  Contested paternity actions in which the identity of a child's father are in dispute can be filed privately by the child's mother, the putative father or the state, on behalf of the child, if the child is receiving public assistance. In these cases, the court will order genetic testing to be performed on the mother, child and putative father. Some states, such as Illinois, have statutes in place that establish paternity by default if the putative father fails to comply with court-ordered testing. Illinois also allows paternity to be established by publishing the putative father's name in the newspaper.
  
  

Paternity Fraud

• Paternity testing laws exist not only to protect the child and ensure that both biological parents assume responsibility for their child, but to prevent men from being subject to what is known as "paternity fraud," in which case the man is fraudulently named by the child's mother, does not undergo DNA paternity testing and is ordered to pay child support. Paternity testing laws give men the means to contest paternity of a child they do not believe to be theirs. By law, married men are the assumed father of a child born of their wives. However, if a married man has doubts if a child is biologically his, he too can contest paternity and seek a court order for DNA testing.
  
  

Rights of the Child

• Paternity testing laws may seem to act in the best interest of the biological parents. However, paternity laws are ultimately in the best interest of the child. Not only does paternity establishment ensure that a child receive financial support until adulthood, as well as ongoing contact with both parents, it gives the child access to information about his biological father, including any genetic health disorders that he should be aware of. The establishment of paternity also gives the child the right to receive a portion of the father's social security and retirement ("survivor's") benefits, and makes him a legal heir to the father's estate after death, should the father die without leaving a legal will. Even if a child's father has a will drafted at the time of death, a child can still claim a portion of his inheritance by being named a "pretermitted" heir (an heir that was accidentally omitted from a will because he was born after the father's last legal will was drafted).