U.S. Legal Forms, Inc.
Paternity Laws and Procedures
Handbook
* * *
A general guide to the laws and procedures related to paternity establishment.
With links to web-based paternity statutes and resources for Maine.
©2004 U.S. Legal Forms, Inc. All rights reserved.
This Guide was developed by U.S. Legal Forms, Inc. (USLF), is protected by copyright, and may not
be reprinted, distributed or displayed by any means without the express written consent of USLF.
U.S. Legal Forms, Inc.
Paternity Laws and Procedures Handbook
I. Introduction
II. Definitions
III. Frequently Asked Questions
IV. Paternity Laws
V. Voluntary Establishment of Paternity
VI. Undoing a Paternity Acknowledgment
VII. Court Action - Legal Establishment of Paternity
i. Parties & Limitations
ii. Venue
iii. Notice
iv. The Hearing
v. Evidence and Presumption of Paternity
vi. Genetic / Blood Testing
vii. Defenses
VIII. Child Custody, Visitation & Support
IX. State Paternity Law Summary & Links
X. Conclusion
I. INTRODUCTION
Throughout the United States, the law holds that children born out of wedlock need support from
both their father and their mother. Generally, the initial burden of child support rests upon the
mother. A father may or may not take responsibility for his child. If a father chooses not to
acknowledge paternity, the mother, and in some cases the state, must initiate a court proceeding
to compel the father to acknowledge paternity and pay child support. This court proceeding is
variously known as a “filiation,” “paternity,” or “parentage” proceeding.
Many putative fathers have a relationship with the unmarried mother during her pregnancy and at
the time of birth, creating an emotional bond with the child and instilling in the father a sense of
responsibility. The ideal time to establish the paternity of the child is during this time frame.
Research shows that a state has a significant interest in ensuring that genuine claims for child
support are satisfied, in reducing the number of individuals forced to enter welfare rolls, and in
establishing a father-child relationship. States enact paternity statutes with these interests in
mind.
The father has a legal obligation to help pay the cost of raising a child. When a child's paternity
is established, he/she becomes eligible for the father's health insurance, the dependent's portion
of Unemployment Insurance Benefits, Social Security benefits, veterans' benefits, life insurance
and other benefits if the legal father becomes disabled or dies. Government agencies can often
help locate the man you name as the father and collect the child support payments from him.
Two model acts have been influential in shaping state paternity law: the Uniform Act on
Paternity of 1960 and the Uniform Parentage Act of 1973. While only about half of all states
have officially adopted the Uniform Parentage Act and/or the Uniform Act on Paternity, the
majority of states have borrowed from these models acts when enacting their own paternity
statutes. This Handbook addresses general paternity law and procedure as it exists in the United
States.
II. DEFINITIONS
Biological Father
The man who fathers a child by impregnating the mother. The biological father is not a legal
father unless paternity is established or presumed by law.
Genetic Testing
A scientific method for determining paternity involving the taking of samples (usually blood
samples) from a mother, child and putative father, then comparing the results. These tests are
sometimes referred to as DNA tests because the information in the samples compares the DNA,
or basic chemical codes, found in each person’s body.
Legal Father
A biological father who has been legally established to be a child’s father and who then is
entitled to the rights and responsibilities of parenthood under the law.
Paternity
Paternity means being the legal father. If a woman is married when a child is born, the husband
is presumed to be the father. However, if parents are unmarried, the child does not have a legal
father until paternity is established.
Presumed father
A person who the law assumes is the father of a child because he was married to the mother
during pregnancy or when the child was born.
Putative Father
A person claimed to be a biological father. When paternity is legally established, a putative
father becomes the legal father.
Voluntary paternity establishment
One of several methods to establish legal fatherhood for a child when the parents agree on the
father’s identity.
Assisted reproduction means a pregnancy resulting by means other than sexual intercourse,
including: artificial insemination, donation of an egg, donation of an embryo, in vitro fertilization
and transfer of an embryo, or intracytoplasmic injection of sperm.
Child means an individual whose parentage may be determined.
Commencement means the filing of the first pleading in a proceeding to determine parentage.
Determination of parentage means the legal establishment of the parent-child relationship.
Donor means an individual who produces eggs or sperm used for assisted reproduction, whether
or not a payment is made, but the term does not include a woman who gives birth to a resulting
child.
Ethnic or racial group means a recognized group with which an individual identifies, or with
which is identified to be in his or her ancestry.
Genetic testing means testing that analyzes genetic markers in order to determine parentage,
including: analysis of specimens of deoxyribonucleic acid, and analysis of specimens that
identify the presence or absence of common blood-group antigens, red blood cell antigens,
human leukocyte antigens, serum enzymes, serum proteins, or red cell enzymes.
Man means a male individual of any age.
Parent of a child means the mother, an adoptive mother or father, and a man who is either:
- “presumed” to be the father;
- “acknowledged” to be the father; or
- determined to be the father by a tribunal of competent jurisdiction.
Parent-child relationship means the legal relationship between a child and a parent of the child.
Paternity index means the ratio of the chance that the mother and a man of the alleged father's
composition and ethnic or racial group conceived the child compared with the chance that the
mother and a random man conceived the child.
Presumed father means a man who, by operation of law, is considered to be the father of a child
due to the factual circumstances unless he is affirmatively determined not to be the father of that
child under other provisions law.
Probability of paternity means the measure, for the ethnic or racial group of the alleged father,
of the probability that the individual in question is the genetic father of the child, expressed as a
percentage incorporating the paternity index and a prior probability.
Putative father means a man who claims to be, or is alleged to be, the genetic father, or the
possible genetic father, of a child, but whose paternity has not been determined. The term does
not include:
- a man presumed to be the father;
- a man whose parental rights have been terminated or declared not to exist; or
- a male donor.
State means a state of the United States, the District of Columbia, Puerto Rico, the United States
Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United
States. The term includes an Indian tribe.
Specimen means a sample of blood, buccal cells, bone, hair, or other body tissue or fluid taken
from an individual to be genetically tested. The term includes any other physical component of
the individual which the testing laboratory determines is appropriate for testing.
Support enforcement agency means a public official or agency authorized to seek:
- enforcement of support orders or laws relating to the duty of support;
- establishment or modification of child support;
- determination of parentage; or
- to locate obligors or their assets.
Title IV-D (“IV-D”). In 1975, Congress amended the Social Security Act, Title IV, Part D (Title
IV-D) to provide greater assistance to the states in establishing paternity and enforcing child
support orders. The law created the Child Support Enforcement program under the Secretary of
Health, Education and Welfare to oversee child support enforcement operations at the state level.
Today, each state’s child support services are monitored by the US Department of Health and
Human Services, Office of Child Support Enforcement. Under the Title IV-D program, states are
required to provide child support services in order to receive federal funding.
Tribunal means a court, administrative agency, or quasi-judicial entity authorized to determine
parentage.
III. FREQUENTLY ASKED QUESTIONS
What is Paternity?
Paternity means being declared the legal father after the child is born. If the parents of a child
were not married when the mother became pregnant or when the child was born, the child does
not have a legal father until paternity is established.
Why is it important to establish paternity?
Establishing paternity is important for both the child and the parents. A child is entitled to the
sense of belonging and identity that comes from knowing both parents. Establishing paternity
often has an important emotional and psychological benefit for the child. Also, until there is a
determination that a biological father is the legal father, the child has no right to receive financial
support from the father, to inherit from the father or to obtain insurance, veterans’, social security
or other benefits through the father. Likewise, until paternity is legally established, the
biological father has no legal rights to the child, such as parenting time (also called access;
formerly called visitation) with the child, and no legal right to participate in major decisions
about the child, such as medical treatment, education or religious training.
What is voluntary paternity establishment?
People may believe that paternity can only be legally established by filing a case in court and
having a judge decide the issue after testing is done or other proof is submitted. However, if
both parents agree who the biological father is, legal paternity often can be established by a
simple process that doesn’t require a court hearing. This is called voluntary paternity
establishment.
How is paternity established?
Paternity is established either voluntarily or by judicial/administrative process. If a woman with
children applies for benefits, she must either provide proof of paternity or assist the child support
enforcement agency in establishing paternity by providing information about the putative father.
The child support office then creates a paternity case and usually begins its paternity
establishment efforts by attempting to locate the putative father. Once they have located the
putative father, they may encourage him to voluntarily acknowledge paternity, arrange for
genetic testing, or begin other proceedings to establish paternity.
When a woman with children applies for public assistance or attend an interview to re-determine
benefits, she is interviewed by public assistance staff to provide information on income,
resources, children, and potential for employment. If a child’s paternity is not resolved, clients
are asked during these interviews to identify the absent parent for paternity establishment and
pursuit of child support. The number of questions asked of clients varies by State, as does the
degree to which staff are trained to actively pursue correct answers. This information about the
absent parent is then transferred to the child support agency.
Does it matter how paternity is legally established?
No. Whether paternity is established voluntarily, or by judicial/administratively action, the result
is the same. In each case, the biological father becomes the legal father and must assume his
responsibilities.
How can I establish paternity voluntarily through the court?
- An affidavit in which both parents agree that the named father (also known as the “putative
father”) is the biological father of the child, or
- An agreement that the mother, the putative father and the child will take a genetic test
(usually a blood test) and have legal paternity decided by the test results, or
- A birth certificate signed by both parents.
- Paternity can be established by default if the alleged father is notified of a paternity hearing
but does not appear. In many states, the husband is determined to be the father of a child
born while the parents are married.
If a child support enforcement agency is aiding the mother, once the mother or other source has
identified a putative father, and the child support agency is reasonably sure they have located his
home or work address, the man must be notified that he has been named in the case. This
notification is typically a letter alleging his paternity and requesting an appointment with child
support staff, submission to genetic testing, or attendance at a court hearing. The putative
father’s receipt of this letter is called “service of process.” Service of process is important to
resolving paternity in a timely fashion. It is also critical because most States do not allow a
default order of paternity to be issued unless the putative father has been properly served.
There are many methods of service, and offices typically start with the regular mail and escalate
to more active methods if there is no response. Methods include certified mail, restricted
delivery mail, notice by publication, and personal service by a private vendor or local law
enforcement official. When mail is certified or restricted, the recipient must personally sign for
the mail in order to be properly served. Some local staff report the same man may be served four
or five times using different methods before they have proof in the form of a signature or
personal contact. It is common to allow 15 to 45 days for response prior to the next service, so
several months may go by before the putative father responds.
What are Administrative Methods Of Paternity Establishment?
In a typical administrative paternity establishment, the mother provides information about the
putative father, and the putative father is sent notification to appear for genetic testing. If he and
the mother are already sure he is the father, they may sign a voluntary acknowledgment or other
consent form. If they are uncertain, they submit to genetic testing and sign an acknowledgment
once testing has affirmed parentage. Under this method, the mother client may have to formally
attest to her belief that he is the father by signing her half of the voluntary acknowledgment or
another form stipulating paternity before the child support office agrees to contact a particular
putative father.
In a few of these States, administrative establishment through voluntary acknowledgment
appears to be possible only prior to application for public assistance. Even in cases of mutual
consent, all public assistance referrals in which paternity is not resolved are given a court hearing
date. In States which rely more heavily on judicial practices, voluntary acknowledgment is the
only fully administrative method of paternity establishment. These States typically use the same
form, whether paternity was acknowledged at birth or at anytime thereafter.
Other States have similar administrative methods but use the voluntary acknowledgment form
only at birth in the hospital or at an alternative site prior to application for public assistance
benefits. For paternities established later, these States use administrative paternity orders based
on mutual consent, typically called Agreed Orders or Consent Agreements. Such orders may
include more information than an acknowledgment affidavit, such as the amount of the support
award, and even custody and visitation guidelines. Similar to voluntary acknowledgments, these
agreed orders are signed by mutual consent, either without or following genetic testing.
Although this procedure is fully administrative in some States, others follow a quasi-
administrative process in which the order is prepared by child support staff and then routinely
approved by a State court.
What if the man is not sure he is the father?
If unsure of whether he is the father, the man should refuse to sign an acknowledgment of
paternity and insist on genetic testing to determine parentage.
Are genetic tests accurate?
New methods of scientific testing are nearly one hundred percent accurate in proving whether a
man is the father of a child. Most testing laboratories now use DNA testing. The test results can
show conclusively if a man is not a child’s father or can show that a man is the father to a high
degree of certainty.
Is it required that both parents sign the paternity acknowledgment forms?
Yes. Legal fatherhood cannot be voluntarily established without the agreement of both the
mother and the putative father. In this way both parents are protected from false claims.
What if parents cannot agree to establish paternity?
Parents sometimes are not able to agree to establish paternity. This may be because the identity
of the putative father is uncertain or because the putative father is not willing to assume the
responsibilities of fatherhood. If the parents do not agree, the voluntary establishment processes
cannot be used. However paternity may still be established by the court. Judicial paternity
establishment proceedings for public assistance clients typically begin with the mother signing
an allegation or stipulation of paternity which names the putative father. These forms are
themselves court documents and may be submitted as an official complaint for court action.
They may also be used later in a court proceeding as evidence of paternity. The forms include
information about the mother and child, and as much information about the putative father as is
available.
Some States substitute the mother’s half of the voluntary acknowledgment form for this same
purpose. As mentioned previously, most States make an effort to encourage the father to
acknowledge or consent to paternity at this point. In States who use primarily judicial
procedures, child support staff initiate the legal case at the same time that they are waiting for the
father to possibly come forward or submit to genetic testing voluntarily.
After the child support agency has filed the complaint with the court, parents typically are given
a hearing date. The filing process may take two to six weeks, and the court date is likely to be
scheduled 30 days to six months later, in order to allow for service of process and to fit within
the court docket. If the mother has already signed a stipulation of paternity, she may not need to
attend the court hearing. In this initial court hearing, the judge will likely order the putative
father to submit to genetic testing.
Some courts offer testing on-site, so that genetic samples may be collected immediately. If the
father is affirmed by the genetic test, the child support agency may request that he sign an
agreement to abide by the testing results. If he does not sign, an additional hearing may be
necessary to order the test as a binding establishment of paternity. A single case may then
involve more than one court appearance, potentially including an initial hearing to order genetic
testing, a second to issue an order of paternity and set the amount of the support award, and a
third to settle matters of custody and visitation.
In most States, these court hearings appear to be brief and routine, varying little based on the
circumstances or people involved. Courts may offer one or two days a month during which they
handle all pending paternity cases, with a single legal representative presenting case after case to
the judge. A few other States have more formal and personal proceedings, with actual testimony
on the part of the mother and father and submissions of acknowledgments or genetic test results
as “evidence.” These are the exception, unless the court is attempting to resolve paternity in the
same session as other issues, or unless the father or mother have hired private legal counsel.
Although prior voluntary acknowledgments of paternity and default orders appear to be
overturned fairly often in court hearings, positive genetic testing results almost always result in a
judicial finding of paternity.
If a court case is started, and paternity is decided, what will the court order?
When a court case is concluded (and the person claimed to be the father is proven by genetic
testing or otherwise to be the biological father), the court will issue an order establishing legal
paternity. In some circumstances, the court also may order an amount to be paid for future child
support, for any past child support that is due, an amount to be paid for the costs of the child’s
birth and medical insurance coverage for the child. A parenting time (formerly called visitation)
schedule may also be established by the court order.
Do the voluntary methods of establishing paternity take care of child support, custody
issues, medical insurance and parenting time (visitation) schedules?
Child support agencies in only two States are required to resolve issues of custody and visitation
at the time of an administrative paternity establishment, and agencies in two other States are
allowed, but not required, to do this. All four of these States employ legal staff to guide parents
and caseworkers in facilitating custody and visitation agreements, and at least one State has a
mediator on staff who explains options to the parents and seeks agreement.
These issues are typically only resolved within the child support office if parents readily agree to
the terms of the custody and visitation, and as part of a single process which links paternity
establishment to the creation of the child support order. If parents disagree on issues of custody
and visitation, staff within these States are likely to make only a limited attempt to resolve the
dispute before referring parents to a family services agency or to the State courts. Depending
upon State processes, this agreement regarding custody and visitation may only be temporary
pending final case review. A few individual local offices in focus States report they attempt to
handle these issues informally at the time the support order is created.
IV. PATERNITY LAWS
Most states either use or draw heavily from the Uniform Parentage Act, a uniform set of laws
developed by legal experts in the field of paternity law. Though there is important variation
among the various states’ paternity laws, in general, state law recognize similar duties, rights and
procedures. A summary follows below.
When a woman becomes pregnant, the man, with whom she has engaged in sexual
intercourse at the approximate time of conception, has an obligation to recognize that he may be
the father. A presumption of paternity occurs if the child is born in wedlock, and paternity may
be established if the parents marry after the birth of the child. Also, while the woman is
pregnant, a putative father has two options: he can acknowledge paternity and assume his rights
as the father, or he can deny paternity of the expected child. If the alleged father denies
paternity, the mother may seek relief.
The father can acknowledge paternity by signing a contract with the mother. Admission of
paternity is sufficient consideration for the contract. The father can also acknowledge paternity
by filling out a “Voluntary Acknowledgement of Paternity” or like-named form or affidavit that
is issued by a health care facility. A health care facility is responsible for providing this form
and filing it with the state when the facility believes that the mother is unmarried. This form
must be usually signed by both parents and sometimes witnessed by a third party. Within one
year, any party to the acknowledgment or the state, if assistance is being provided to the child,
may request that the court order a genetic test. If the test excludes the male party, the court will
issue a non-paternity order.
If the father denies paternity, the mother of the child, a state agency providing support because of
the birth or impending birth, or other potential entities (such as the district attorney) may initiate
a paternity proceeding against the alleged father by filing a duly verified petition.
During a private hearing, the court first determines the issues of paternity. If the father admits to
paternity, the admission is reduced to writing. If paternity is denied, corroborating evidence and
testimony of the parent is required. If the court finds by the preponderance of the evidence that
the putative father is the actual father, the court may then proceed to determine relief. The court
may approve settlement agreements, order an investigation or production of evidence, and/or
order the father to pay certain expenses. This can be done even if the putative father fails to
submit a plea or appear at trial.
If the court cannot find good cause to allow relief to the mother, the court (upon its own initiative
or by recommendation) shall order the mother, child, and alleged father to submit to a blood test.
If any person refuses to such a test, the court may resolve the question of paternity against such
person or enforce its order.
A rebuttable presumption of paternity is created if one or more blood tests result in a cumulative
paternity index in the high ninety percentiles (states vary). If the experts disagree in their
conclusions, the evidence of the blood tests, together with testimony of the mother, is a sufficient
basis upon which to presume paternity for establishing temporary support. Upon the motion of
the mother, the court shall enter a temporary order requiring the alleged father to provide support
pending the determination of parentage. If the alleged father refuses to comply with court testing
orders, the issues of paternity will normally be resolved against him. Any temporary support
paid will be forfeited.
V. VOLUNTARY ESTABLISHMENT OF PATERNITY
Many states require the healthcare facility were the baby is born to furnish voluntary
acknowledgement of paternity forms. A particular state agency is responsible for providing the
forms to the healthcare facilities and for training the healthcare providers in recognizing potential
children being born out of wedlock. Usually, the healthcare facilities must fully explain the form
to the parents before allowing the parents to complete the form. Some states require the form to
be completed while under oath and witnessed by healthcare providers. Generally, the form
should be completed prior to discharge.
If the man named as the father of the child agrees he is the father, he will be asked to sign an
official form stating he is the father. The form is widely available to parents in many hospitals
immediately following the birth of their child. If the form is signed in the hospital, the mother
and the father do not have to appear in court to establish paternity for the child.
When the parents are willing, it is easy to establish paternity. When a child is born in a hospital
or birth facility, the parents can complete paperwork in the hospital that will establish the
paternity of the child without a court procedure. If the father is not present at the birth, he can
complete an affidavit in a designated facility at any time up to the child’s 18 th
birthday. The
support amount will be based on his ability to pay as determined by child support guidelines.
When a man voluntarily acknowledges his child, he will be responsible for support until that
child is 18. There are there ways that paternity can be established at or around the time of the
birth:
i. The paternity of a child can be presumed. The State can presume paternity when:
a. A child is born within a marriage.
b. A child is born within a predetermined number of days (approximately 300) of a
marriage.
c. When genetic testing indicates a high probability of biological fatherhood.
ii. The parents can voluntarily sign an acknowledgement of paternity in the hospital or
birth facility.
iii. Since 1989 the law has required hospitals to provide an opportunity for unmarried
parents to complete an affidavit of paternity.
iv. When unmarried parents give birth at a hospital or birthing facility, the parents are
given information about the benefits, consequences of, and alternative to
acknowledging paternity, including any rights pertaining to being a minor. The father
is clearly informed he will have an obligation to pay child support.
v. The parents can sign an acknowledgement of paternity at a designated site outside the
hospital
vi. To facilitate paternity establishment in these cases, it is possible for a father to
voluntarily acknowledge paternity in various facilities outside the hospital. These
State designated facilities may include:
a. Child Support Enforcement offices.
b. Birth records facilities.
c. WIC centers.
VI. UNDOING A PATERNITY ACKNOWLEDGMENT
Every year throughout the United States, many men mistakenly acknowledge paternity of
children who are not, in fact, their own. If there is any doubt in the putative father’s mind as to
whether or not he is really the father, he should not sign an acknowledgment of paternity, but
rather should suggest (and demand if necessary) that genetic testing be conducted in order to
establish paternity. Using your own money to support a child that is not yours would be for most
people a regrettable mistake. The real father should not escape responsibility for supporting the
child.
If a father has signed a paternity acknowledgment, and then begins to doubt whether he is really
the father, quick action may be able to reverse the legal situation. Legal fatherhood for the child
is established as of the date both parents sign the acknowledgment form, if it is properly
completed and filed. However, in many states:
If, within a short period of time (sometimes 60 days) of the date both parents signed, either
parent comes to believe that the man named on the form may not be the father, one of the parents
must file a case in Court and ask the court to rescind the acknowledgment (that is, have it
declared null and void).
If, within a short period of time (sometimes 60 days) of signing, the parent questioning paternity
is a party to a court hearing about the child (for instance, to establish a child support order or a
custody and visitation order), the parent must raise the issue of the child's paternity at the
hearing. Before the end of the time period, the parent questioning paternity must file a case
asking to rescind the acknowledgment.
After the time period has run (for example, 60 days), the acknowledgment is as binding as a
court judgment of paternity and has the same legal force and effect. However, parents can
usually challenge the acknowledgment, but only in court, only within a certain time (often
between six months and two years) of the date both parents sign, and (in some states) only on
limited grounds of fraud, duress or material mistake of fact.
The court will generally order the parents and child to undergo paternity tests that determine
whether the man is the biological father of the child by comparing certain genetic characteristics
that show up in blood or tissue samples from the child and both parents. These samples are
obtained either by a simple blood draw or by rubbing a cotton swab on the inside of the cheek.
Obviously, if there are any questions about the identity of a child’s biological father, a parent
should ask for paternity tests BEFORE signing an acknowledgment form.
VII. COURT ACTION – LEGAL ESTABLISHMENT OF PATERNITY
In order to bring a paternity action against a putative father, most states require that the mother
file a petition or a complaint with the appropriate administrative or judicial authority. Some
states also provide that any interested party may file an action against a putative father.
Generally speaking, the states provide that a governmental agency, such as a Department of
Social Services, Child Support Enforcement, or a District Attorney, may file an action against
the putative father only if the mother and/or the child receive support assistance from the state.
A determination of paternity is governed by the ordinary rules of civil procedure. The party
seeking to establish paternity is entitled to full discovery, to compel the testimony of all
witnesses, and to have the case tried by a preponderance of the evidence. Many states conduct
pretrial hearings, consent conferences, pretrial inquiries, or informal hearings. Generally, a
pretrial hearing is brought as soon as possible after the filing of an action. During the hearing,
the court may compel any party to testify under oath or to produce evidence. If a party refuses to
testify for fear of self-incrimination, the court may offer immunity. At the conclusion of the
hearing, the judge may make the recommendation that the putative father acknowledge paternity.
If the putative father refuses, the judge may order a paternity test (if one was not done before).
Upon receiving the results of the paternity test, the judge may make a final recommendation. If
the final recommendation is refused by any party, the case then proceeds to trial.
If the man named as the father of the child denies being the father, or if the mother is unsure of
who the father is, the legal action should be filed and genetic tests done. Usually a father will
admit paternity when genetic test results show he is the biological father of the child. If the
father continues to state he is not the father, he may ask for a court hearing. The judge at a court
hearing listens to both sides and considers the test results and other evidence.
An action to establish paternity may be brought by the mother, the alleged father, the district
attorney or the child. Note: a child over the age of 12 must normally be made a party to such an
action.
If the district attorney or other state agency brings the action and the alleged father is indigent, he
may be entitled to a court appointed attorney to represent him. A minor who is a party to the
action must be represented by a court-appointed guardian ad litem.
Such an action is typically brought in the family law departments of the courts and many of the
same procedures for temporary custody, visitation and support orders are available as in an
action for dissolution of marriage. Note, however, that property issues between the mother and
father cannot be litigated in the paternity action, but must be brought in a separate civil suit.
As more and more parents voluntarily acknowledge paternity at the time of birth or shortly
thereafter, the number of paternity cases entering the IV-D system will decrease. However, there
will always be cases in which the alleged father does not acknowledge paternity. The reasons a
man might not acknowledge paternity include:
- A desire to avoid financial responsibility
- Genuine doubts about paternity
- Inconclusive test results.
Whenever paternity is contested in a IV-D case, all parties are required to submit to genetic
testing (i.e., mother, child, alleged father). Any one of the involved parties may request genetic
testing. In contested cases, the State also has a right to require genetic testing without obtaining
a court order.
Except in special cases, all parties are compelled to cooperate. In some cases, the state may
determine that a woman has "good cause" for refusing to cooperate in the establishment of
paternity. Each State determines its own definition of good cause. Possible reasons for "good
cause" include:
- Danger of physical or emotional harm to the child or the mother
- The child was conceived as a result of rape or incest
- Legal adoption is pending
When the State requests testing, it may seek to recover the costs of the test from the alleged
father if paternity is established. The Federal Government will pay 90% of any amounts not
recouped.
There must be reason to believe the alleged man is the father. This usually means facts that
indicate contact around the time of conception. To protect men from false accusations, a woman
must sign a sworn statement identifying the man she alleges to be the father of her child. In most
cases, genetic testing can prove, beyond a reasonable doubt, whether a named man is or is not the
biological father of a particular child. If the alleged father does not acknowledge paternity and
agrees to genetic testing, the caseworker will issue an order for genetic testing and schedule
another conference to occur after test results are returned. If the alleged father does not agree to
genetic testing, a default determination of paternity may be issued. See the section entitled
“Genetic/Blood Testing,” below, for information on the science behind these tests and their
reliability.
i. COURT ACTION – PARTIES & LIMITATIONS
The “Parties” to a court case are the people involved in the case. In most states, the child, the
mother, the putative father, or a state agency (suing on behalf of the mother) may initiate a
paternity action in court.
In rare cases, a man claiming to be the actual father may challenge the parenthood of a man who
is the legal father. States who have ruled on, or have statutes regarding, this issue, have been
mixed in their handling of the situation. Some states allow a court action to proceed, while other
states do not consider such an action to be in the best interest of the child and therefore disallow
such an action, especially if an excessive amount of time has passed since the birth of the child.
Someone wishing to attempt to prove paternity of a child with a legal father is well advised to
consult an attorney.
A “statute of limitations” is any law that terminates a right to bring a court action due to the
expiration of a legal deadline. Though state law varies widely, in general terms a court action
regarding paternity may be brought at any time before the child reaches the age of majority
(often his/her 18th birthday) by the mother or the father of said child, by the child, or by the a
child support enforcement agency.
A state child support enforcement agency bringing an action on behalf of a child may sometimes
initiate a court action at any time up to the child’s 21st birthday. In many states the child can
bring an action at any time before his or her 21st birthday.
ii. COURT ACTION – VENUE
The term “venue” refers to where, and in which court, a paternity action may be properly filed.
Proceedings to establish paternity may normally be initiated in the county where the mother or
child resides or in the county where the putative father resides, regardless of what state the child
was born in. The fact that the child was born outside of your state of residence does not prevent
someone from bringing paternity proceedings in the state of residence. Proceedings must be
filed in the appropriate court, and in the appropriate court division. In many states a “family
court” or family court division handles paternity cases. A call to your state child support
enforcement office, or local court clerk should point you to the correct court.
iii. COURT ACTION – NOTICE
When attempting to establish paternity by legal action in court, notice must be served on all
interested parties in order that they be aware of the pending action and have an opportunity to
respond.
The “summons” is the document that notifies the putative father of the court action. Normally,
the court or any judge, or family support magistrate assigned to the court may cause a summons
to be issued, requiring the putative father to appear in court at a time and place designated for the
hearing, in order to show why the request for relief should not be granted. Notice to a father who
resides out of state may require special procedures.
The summons typically contains language to the effect that the putative father (A) he has a right
to be represented by an attorney, and if he is indigent, the court will appoint an attorney for him,
(B) if he is found to be the father, he will be required to financially support the child until the
child attains the age of majority, (C) if he does not admit he is the father, the court or family
support magistrate may order a genetic test to determine paternity and that the cost of such test
shall be paid by the state in IV-D support cases, and in non-IV-D cases shall be paid by the
petitioner, except that if he is subsequently adjudicated to be the father of the child, he shall be
liable to the state or the petitioner, as the case may be, for the amount of such cost and (D) if he
fails to return the answer form or fails to appear for a scheduled genetic test without good cause,
a default judgment shall be entered.
iv. COURT ACTION – THE HEARING
A hearing will be held at the courthouse. The parties and any witnesses they call may present
testimonial or physical evidence to the judge. In most states, a judge rather than a jury will hear
the evidence. The court may determine that it is in the best interest of any of the parties to the
case for the hearing not to be open to the public. A record of what happens at this hearing will
normally be kept if any party requests so or the court orders that a record be kept.
Witnesses may be required to appear in court by use of subpoenas. It is prudent to subpoena any
witness you need to testify on your behalf in order that they be legally required to appear. A
potential witness’s failure to obey a subpoena summoning them to court is unlawful, and a
warrant may be issued for the person’s arrest. The hearing may be delayed until the witness is
found and made to testify.
Any party may seek a restraining order or injunction. Also, any party can seek temporary orders
as to custody, parenting time, and support once the court enters an order determining the
existence of the parent and child relationship.
v. COURT ACTION – EVIDENCE AND PRESUMPTION OF PATERNITY
If the evidence is strong enough, most states presume that a man is the father of a child. In many
states, the following items are typically considered to be either presumptions of paternity or
evidence of paternity.
i. The man and the child’s natural mother are married or have been married to each
other and the child is born during the marriage, within 300 days after the marriage is
terminated by death, annulment, declaration of invalidity of marriage, dissolution of
marriage (divorce) or after a decree of legal separation is entered by the court.
ii. Before the child’s birth, the man and the child’s natural mother have tried to marry
one another by a marriage solemnized in obvious compliance with law, although the
attempted marriage is or could be declared invalid, and if the attempted marriage
could be declared invalid only by the court, the child is born during the attempted
marriage or within 300 days after its termination by death, annulment, declaration of
invalidity of marriage, dissolution of marriage (divorce); OR if the attempted
marriage is invalid with a court order, the child is born within 300 days after the
couple stops living together.
iii. After the child’s birth, he and the child’s natural mother have married, or tried to
marry, each other by a marriage solemnized in obvious compliance with law,
although the attempted marriage is or could be declared invalid.
iv. The man has acknowledged his paternity of the child in writing filed with the court or
registrar of vital statistics, if this acknowledgment has not previously become a legal
finding.
v. With the man’s consent, he is named as the child’s father on the child’s birth
certificate.
vi. The man is obligated to support the child under a written voluntary promise or by
court order or by an administrative order.
vii. While the child is under the age of majority the man receives the child into his home
and openly holds out the child as his natural child.
viii. The man acknowledges his paternity of the child in writing filed with the court or
registrar of vital statistics.
ix. The mother does not dispute a claim of paternity within a reasonable amount of time,
and any man presumed to be the father gives his written consent.
x. The man undergoes genetic or other tests of inherited characteristics by a court-
approved agency, and these tests show that there is a very high percent that he is the
father.
xi. The child of a married couple who are both cohabiting with each other and not
impotent or sterile is normally conclusively presumed to be the child of the married
couple. There is normally a limited right of rebuttal by blood/genetic testing –
usually only the father, mother, the child or a man who is presumed to be the father
under any other presumption can bring the action to establish paternity based upon
the genetic testing and only within a few years of the birth. There has been and
continues to be much litigation regarding this presumption and the law may be
evolving in this area. Evidence may be admissible to show that the parties were not
cohabiting during the entire period of possible conception to prove that conception
was not possible during the limited period of cohabitation.
vi. COURT ACTION – GENETIC / BLOOD TESTING
In any civil case in which paternity is a relevant fact, the court must order the mother, child and
alleged father to submit to genetic tests on the motion of any party to the case. The court may
also order such tests on its own initiative. Laboratory tests comparing the DNA of two persons
can determine to a very high degree of probability whether the two persons are parent and child.
Blood tests can answer the same question to a high degree of accuracy.
Ordinarily, the parties will share the cost of the tests, although the court has the power to make
orders that fit the situations of the parties. If the district attorney requests the tests, it must pay
for them, normally subject to reimbursement from the father if proven to be such.
Tests are administered by approved facilities, and may result in presumptive, or conclusive
evidence of paternity, depending on state law. The parties may administer their own tests (such
as home tests from commercial kits of various sorts) but the court will rule on their admissibility
and weight.
How genetic testing works:
- For each genetic test, markers appear in pairs.
- For each pair of the child’s markers, one comes from the mother and one comes from
the father.
- Under normal circumstances, if the tested man is missing the marker(s) contributed by
the father, he is excluded from paternity.
- When the genetic markers match, the probability of paternity can reach into the high
90’s percentile.
There are several types of genetic test systems each with differing degrees of discriminatory
power. The reliability of a genetic test is determined by its power to exclude falsely accused
men. If the accused man does not have the identified genetic markers, he cannot be the father.
Genetic tests can be divided into two categories:
(1) Those that analyze fluids or substances that identify genetic markers. Genetic test that
analyze fluids or substances that identify genetic markers are often referred to as conventional
tests. These tests include:
i. Red Blood Cell Antigens: Excludes approximately 63-72% of mistakenly alleged
men. Any test that directly excludes a man is sufficient to exclude a man from
paternity.
ii. Red Cell Enzymes and Serum Protein: Excludes approximately 70-90% of mistakenly
alleged men. When Red Cell Enzymes and Serum Protein are combined with Red
Blood Cell tests, the certainty of exclusion increases to 89-96%.
iii. Human Leukocyte Antigen (HLA): Excludes approximately 93.5% of mistakenly
alleged men. When this test is combined with the others, the average exclusion
probability is more than 99%.
Genetic test labs select from several of these tests. Each test procedure contributes to the
probability of exclusion. At the same time, each test provides additional evidence that an
included man is indeed the father of the child.
(2) Those that analyze the DNA molecule itself. DNA testing analyzes the DNA molecule itself.
DNA testing is increasingly selected as the test system of choice for many States because:
i. DNA test results are highly reliable. One DNA test can have a higher power of
exclusion than all of the conventional tests combined.
ii. Specimen collection can be simple and noninvasive. Conventional tests require a
blood sample for analysis. Blood must be carefully preserved and transported. Since
DNA is present in all cells of the body, DNA testing can be done on a specimen
collected by gently rubbing the inside of the cheek with a cotton swab. This is known
as the buccal swab method. If stored properly, specimens collected in this way need
no refrigeration and can be used at any time. In fact, if a tissue sample is available,
DNA testing can establish paternity even when the alleged father is deceased.
Test results are reported as either positive or negative.
i. Negative results: When the named man is not the biological father, genetic testing can
provide conclusive evidence of false allegation. Negative genetic test results provide
strong evidence that a particular man is not the father of the child. Based on these
results all claims for support are normally dropped.
ii. Positive results: When a man is not excluded, the probability that he is indeed the
father of the child reaches into the high 90’s percentile. Based on this evidence, the
law allows States to presume paternity in cases where the probability is high. The
exact numbers used to determine paternity varies from State to State but is usually
95% or higher.
When tests indicate a high probability of paternity (a rebuttable presumption of paternity), it
becomes the man’s responsibility to disprove the findings. If he has not challenged the results
within the number of days specified in State procedures, (and the genetic test results reach the
threshold of probability established by the State), the genetic test results become a rebuttable, or,
at the option of the State, a conclusive presumption of paternity. There is no right to a jury trial.
It is the genetic testing lab’s responsibility to assure that the results reported are the correct
results for that particular sample. This is important because, once excluded, a man can never be
required to provide support for that child. An error in labeling or data entry could deny a child
rightful support forever. In most cases, when a man is wrongfully excluded it is because the
specimen was taken from a "wringer" or imposter-- a man who was not the father. If the mother
is not present at the time the specimen is collected, it is important that the identity of the man be
checked carefully against identifying photos. Important points to remember:
- When paternity is contested all parties involved are required to submit to genetic testing.
- Genetic test results provide conclusive evidence that a man is not the father of the child.
- When a man is not excluded, the probability that he is the father can reach into the high 90-
percentiles.
vii. COURT ACTION – DEFENSES
Defenses to a paternity action involve usual items of evidence and testimony challenging the
evidence put forth by the petitioner/plaintiff. “Presumptions,” other than a conclusive level of
DNA similarity, will only be determinative if not rebutted by sufficient evidence to the contrary.
The party who wishes to overturn a presumption has the burden of proving sufficient facts to do
so.
If two presumptions are in conflict, the court will decide which is the weightier and prevailing
presumption. For example, depending on all the facts and circumstances, a man who receives
the child into his home and openly holds out that the child is his own might be adjudged the
father, even if another man is likely (but not conclusively) the child's biological father as shown
by a blood or DNA test.
VIII. CHILD CUSTODY, VISITATION & SUPPORT
The majority of paternity cases are instituted in an attempt to collect support payments of behalf
of the minor child from a father who is not acknowledging the child and not paying support.
Child custody and visitation issues are typically decided in the same court action. Governmental
child support enforcement agencies exist for the purpose of establishing and enforcing child
support obligations upon any reluctant fathers, which often involves proving the paternity of the
father.
It is important to note that in those cases where paternity is acknowledged voluntarily -- without
a court action for paternity establishment and child support -- the support issues, as well as
custody and visitation issues are not resolved by the voluntary acknowledgement. In these
situations, it may be necessary to go to court order to determine each parent’s rights and
obligations regarding support, visitation and custody of the minor child.
If you consult an attorney to help with your case, he or she will have all the necessary knowledge
and information regarding these matters. Your local government child support enforcement
entity may also be able to assist you not only on the issue of child support, but with information
or actual representation regarding visitation and custody.
IX. STATE PATERNITY LAW SUMMARY AND LINKS
Link to USLF Maine Paternity Law Summary:
http://secure.uslegalforms.com/lawsummary/ME/ME-598P.htm
Paternity Forms
A Voluntary Acknowledgement of Paternity form may be obtained by mail from:
Deputy State Registrar
221 State Street
11 State House Station
Augusta, Maine 04333-0011
Telephone: (207) 287-3181
Venue - §1568
An action under this subchapter may be brought in the county or district where the alleged father
is present or has property or in the county or district where the mother or child resides.
Genetic Testing – §1561
If the experts conclude that blood or tissue tests show that the alleged father is not excluded and
that the probability of the alleged father's paternity is 97% or higher, the alleged father is
presumed to be the father, and this evidence must be admitted. The court shall admit as evidence
the results of any genetic test that is of a type generally acknowledged as reliable by
accreditation bodies designated by the federal Secretary of the Department of Health and Human
Services and performed by a laboratory approved by such an accredited body.
Paternity-related Links
Maine Division of Support Enforcement & Recovery: Paternity Establishment
http://www.state.me.us/dhs/bfi/dser/AOP.htm
Maine Paternity FAQ (Dept. Human Services): http://www.state.me.us/dhs/bfi/dser/PatFaq's.htm
Maine Paternity FAQ (paternitynet.com): http://www.paternitynet.com/faq24.html
X. CONCLUSION
Though state paternity laws are steadily becoming more uniform, there remain significant
differences in the laws and procedures in many states. This Handbook should only be used as a
guide to inform oneself about the issues and processes involved in a situation where paternity is
at issue. State resources, including an attorney and/or child support enforcement personnel
should be consulted in order to ascertain specific laws and procedures in your state.