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Legal How-To: Establishing Paternity

By Brett Snider, Esq. on January 22, 2014 | Last updated on March 21, 2019

Establishing paternity can often be a squeamish subject for a parent, but it may be necessary to obtain legal protection for a child.

Unmarried fathers seeking custody or visitation rights for their children often need to establish paternity in order to get the law on their side. For mothers hoping to extract child support from deadbeat dads, establishing legal paternity is key after locating the father.

Since paternity can be critical for a parent's legal rights, here is a general overview of how to establish paternity:

1. Paternity Presumed in Marriage.

It may seem unfair or outdated, but state laws generally presume that a married man is the father of a child born by his wife. This is true even if the baby was conceived before the marriage, and in some states even if the baby was born with 300 days of the marriage ending.

If there are no challenges to the baby's paternity, this presumption will be enough to establish that the husband is the baby's father. However, if someone wishes to challenge the child's paternity (like a former boyfriend or romantic partner), sufficient evidence can potentially overcome this presumption.

2. A Voluntary Declaration of Paternity.

For unmarried couples with children, or for those who have children prior to a marriage, paternity can be cemented by having the male partner or spouse sign a voluntary declaration of paternity.

For married couples, the new husband can choose to make legally "legitimate" any children born out of wedlock, giving those children the same rights and recognition as those born while the couple was married.

For unmarried couples, the child's paternity can be established by the father voluntarily agreeing to sign as the father on the child's birth certificate and/or by filing a declaration of paternity.

3. Court-Ordered DNA Testing.

If the biological father is reluctant or refuses to acknowledge paternity, a paternity suit can be filed to force the father to submit to a paternity test. Although the procedure is slightly different in each state, most state child support agencies will file a paternity suit on the mother's behalf at no cost.

Once the suit has been filed, and the alleged father has been served with the suit, a court will most likely order the father and child undergo DNA testing to determine paternity. DNA paternity tests typically involve a quick cheek swab and are up to 99.9 percent accurate.

Need More Help?

Establishing paternity may seem rather straightforward, but in reality it can get complicated, as some parents in our FindLaw Answers Child Custody & Support forum can attest. If you have more questions about establishing paternity in your particular case, it may be wise to speak with an experienced family law attorney in your area.

Are you facing a legal issue you'd like to handle on your own? Suggest a topic for our Legal How-To series by sending us a tweet @FindLawConsumer with the hashtag #HowTo.

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