Dealing with paternity cases can be nightmarish for divorce professionals. When dealing with a paternity case, it’s important that you understand the laws, rules, and methods for defending a client properly.
By Christian Denmon, Trial Attorney
In many states, paternity during divorce cases is established when:
- A child is born during the marriage, or
- A child is born before a marriage, but the two parents subsequently marry, legally binding the child to both parties.
It’s important to note that if the mother and father are not married, paternity is established by signing an acknowledgement form at the hospital or by judicial order (usually after a DNA test). Genetic testing is another beast entirely.
Typically, this topic comes up if the father wants to:
- Disestablish paternity of a child born during a marriage, or
- Establish/disestablish paternity of a child conceived before the final dissolution is complete.
Standing: The Father Gets a Say
When a child is born during the marriage, but is not the father’s, he is the only parent that can bring forth the claim that the child isn’t his. The wife lacks the power to bring an action of disestablishment to court and if she does, her claims will be subject to dismissal.
The Law Behind Paternity Testing
There are many statutes that say that any party in a proceeding can establish paternity by requesting scientific testing. As mentioned above, that standing is limited to men in divorce cases (as opposed to paternity cases).
DNA tests are almost exclusively used, and are admissible as evidence if the probability is between 0 and 95%. If the probability is 95% or greater, then there is a reasonable presumption that the husband is the biological father, putting the ball in his court to prove otherwise.
Disestablishing Paternity of a Child Born During the Marriage
Many states have laws in place that provide the mechanism for a male to disestablish paternity of a child born or legitimized during a marriage. If a father believes he is not the biological dad of a child born during the marriage, then there is a certain procedure to follow.
- File a petition for all interested parties, including the Department of Revenue (because they will presumably need to be on the lookout for the real dad if the petition is granted).
- If a paternity or a child support obligation has already been ordered, then there needs to be an affidavit by the father. It will relay the newly discovered evidence that has come to the father’s attention since the establishment of child support.
- Submit DNA tests within 90 days of filing showing that the petitioner is not the biological father.
- Submit the affidavit proving that the dad is either current on all child support obligations or delinquent because of an inability to pay.
However, relief will not be granted, regardless of the DNA test results, if the father consented to taking on the paternal rights after finding out he wasn’t the biological father, as this would be unfair to the child.
Establishing Paternity of a Child Born After the Divorce
In some cases, the wife will be pregnant during a divorce and, as one can imagine, the paternity of the child is often disputed.
In these cases, the court will order genetic testing of the child, but will wait until the child is born to actually do it. In effect, a court can grant a divorce, but “bifurcate” or “reserve” on the issue of child support until after the birth of the child.
For example, I went to trial with a case where the wife and the husband had continued to have romantic encounters during the divorce proceedings. A month and a half before trial, the parties had a romantic affair in the courthouse parking lot after a domestic injunction violation both parties had against each other had been dismissed.
At trial, the wife got on the stand and blurted out that she was pregnant, but didn’t know who the father was! The judge and the husband fell out of their chairs with surprise. The judge granted the divorce and resolved all pending issues, but held back regarding paternity and child support pertaining to the unborn child.
Months later, the parties submitted to DNA testing and resolved the issue.
If paternity is contested, don’t panic. You can file a motion to request determination of paternity, order DNA testing, and attempt to split the cost of the testing with the other party. However, it is often more cost-effective and usually more advisable for the parties to compromise on the issue, rather than taking it to court.
Christian Denmon is one of the founding partners at Denmon & Denmon Trial Attorneys. With an AVVO Clients’ Choice award for family law and articles published in various law publications, including The Law Street Journal, Christian aims to educate and inform future and present divorcees.