PATERNITY

The word "paternity" means fatherhood and the most common use of the word is to describe the test used to determine whether a man is the biological father of a child. The courts use actions called paternity proceedings to decide custody, visitation and support issues for unmarried people with children. Sometimes people who were married also use paternity proceedings when either the husband or the wife claims that the husband is not the biological father of the child.

What is "establishing paternity"?

"Establishing paternity" means that there is a court order identifying the biological father of the child. The courts don't have actions "establishing maternity" because there is little question about who gave birth to the child. Sometimes the parties agree about the identity of the father; then the court uses the paternity proceeding to settle the other issues raised by the parties (custody, etc.). If the parties don't agree about the identity of the father, the court will often order blood tests to establish paternity. These tests usually determine the identity of the father; you will only have to have a trial on the issue of paternity if one party says that the blood tests were wrong.

Paternity can also be established by "conclusive presumption" (meaning that the parties cannot argue about the evidence once the court accepts it) with a declaration the father signs at the hospital, or if the parties were married and living together at the time the child was conceived and the husband is not impotent or sterile. Paternity is established by "rebuttable presumption" (meaning that the evidence can be challenged) if the parties were married when the child was born, they attempted to marry, or the child lived with the father and the father said or acted like the child was his.

Should I file a paternity proceeding even if there is no argument about the identity of the father?

Yes if you were not married to the other parent and you want to get an order for child support or custody and visitation.

What happens after paternity is established?

After paternity is established, either the mother or the father can request that the court decide where the child will live, who has a legal right to visit the child and when, who has the legal right to make decisions about the child's life (medical care, education, etc.), and which parent is required to pay child support.

How does a paternity proceeding start?

One of the unmarried parents can start a paternity proceeding by filling out the appropriate forms and filing them with the court. These proceedings are kept confidential except for the court's final order. The Family Support Division of the Office of the District Attorney ("DA") can also start the proceeding for the unmarried mother, but the DA will only help her establish paternity and get an order for child support. If you start the proceeding through the DA's office, you must do the custody and visitation parts of the proceeding yourself. When the DA's office handles your paternity proceeding, the father is entitled to free legal representation.

Can I start or defend a paternity proceeding by myself if I am a minor?

No. If you are a minor, a "guardian ad litem" must be appointed by the court to be the actual party to the action because only adults can bring or defend family law cases. Your guardian ad litem must be a person over the age of eighteen; usually minors ask the court to appoint one of their parents as guardian ad litem. When the DA starts a minor's paternity proceeding, the minor does not need a guardian ad litem for the part of the case (e.g., child support issues) handled by the DA.

When can a paternity proceeding be brought?

Either parent can bring a paternity proceeding before or after the child is born and paternity can be established any time before the child is eighteen.

Should I get a child support order if the other parent doesn't have any money?

Yes. The other parent may start working or otherwise have money in the future. If they do, having a child support order will make it easier to get money. A child support order also can make the non-custodial parent responsible for medical insurance, health care, and child care expenses. The order will let you collect up to three years of back support if the child was born on or after January 1, 1989, the father was given a copy of the child's birth certificate, and the father received written notice that he is the father and he has a duty to support his child. If you are receiving TANF, the DA will get a child support order for you whether you want one or not because the state requires the parent the child does not live with to pay back the TANF.

Why should I get custody and visitation orders?

If you do not get custody and visitation orders, you and the other parent have an equal right to custody. When you get custody and visitation orders, you decide where the child will live and when ("physical custody") and who makes decisions about the child's medical care, education, etc. ("legal custody"). The orders can say that you share both physical and legal custody, one of you has both sole physical and legal custody, or you share only one of the two types of custody. Having these orders makes things clear and gives the parents the option of "having the order enforced," e.g., going to the court or the police, if the parents start fighting and won't let each other see the child as described in the order. Parents who don't fight also get custody and visitation orders because visits and decisions become easier for everyone when they have a schedule to follow.

Do the child's grandparents have a right to visitation?

Yes. The grandparents can ask the court for visitation rights with the child if the custodial parent does not let them see the child, or if the grandparents think they see the child too infrequently.

Can the court orders I get as a result of a paternity proceeding ever be changed?

Yes, but if you want to change a court ordered child support, custody or visitation order, you must show that the circumstances have changed. To change these orders, you must "request a modification" of the order. A change in circumstances must be significant; for example, the court may modify a child support order because the other parent got a much higher paying job, or it may modify a visitation order because the visiting parent almost never comes to his scheduled visits. You cannot modify any of these orders without being able to show that something has changed and therefore you should think carefully about what you ask for and what you agree to during the original paternity proceeding.

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