Paternity

Sections within this essay:

Background

Consider the early days of courtroom drama: where a resistant father would be wrestled into court and a jury would compare the physical features of the alleged father and the fatherless child in question to render their verdict. In later years, blood grouping tests were performed, but this only served to rule out a certain class of blood types (such as men with type A, B, or O blood types). Cases were often dismissed if witnesses could show that the mother had sexual relations with other men during the same time as the alleged father.

Today, the use of DNA testing for positive identification in paternity litigation has rendered most of the previous legal practice and procedure obsolete. The alleged father need only submit a painless DNA sample (usually in the form of a saliva swab) to prove or disprove his parentage. DNA matching has replaced the Human Leukocyte Antigen (HLA) Test, which was used to match not only blood type, but also tissue type and other genetic factoring. Experts had asserted that the HLA was at least 98 percent accurate. But presumptive fathers (based upon HLA results) could rebut those presumptions by proving they were out of the state, impotent (in pre-Viagra years), or sterile at the time the child was conceived. Conversely, DNA testing has a more conclusive accuracy (close to 100 percent) that becomes almost impossible to defeat.

Significance

A child born to a married couple is considered legitimate in the eyes of the law. However, the fact that a person's name appears on a birth certificate is not conclusive proof of paternity. Since there is no requirement that a father sign a birth certificate, a mother may list anyone whom she believes is, or wants to be, the father.

The significance of a paternity determination is multifold. For a father who resists parentage, it means that he will now be held accountable for his share of support and responsibility. For a father who wishes to establish that he is the biological parent, he can do so with relative ease of procedure. Importantly, if the child is born out of wedlock, consent from the biological father is needed before the mother can give the child up for adoption.

For a mother, paternity determinations secure financial support as well as custody and visitation rights. For a child, at stake is the right to shelter and aid, as well as the emotional and psychological relief in knowing whom his or her father is. Paternity also secures the right to inherit, the right to access personal information about the known health risks and profiles of the paternal family, and the right to sue for harm or death of the father, resulting in loss to the child. Likewise, a child for whom parentage has been established may also be eligible to receive workers' compensation benefits resulting from the father's death, or other dependent-based governmental assistance.

Voluntary Paternity Determinations

The establishment of paternity need not always conjure up images of court battles and adversity. A father may be very willing to support a child, but simply wants to ensure that he is indeed the biological parent. He may want a judicial determination before he commits to making child support payments or playing an emotionally-committed supportive role in the child's life.

Other fathers believe they have been unjustly denied knowledge of, or access to, children they may have fathered. This may occur following a contentious parting of ways between parents, and the mother wants no further involvement or contact with the father, and does not want the father involved in the child's life.

Finally, some men fear that they may not learn until years later (and perhaps at an inopportune time) that they have fathered a child. To ensure against this, men may wish to voluntarily submit to DNA testing and (in limited circumstances) compel women with whom they have had prior sexual contact to undergo a pregnancy test. (Generally, only a man alleging that he is the father of an expected child has legal standing to initiate a paternity action.) This brings closure to the relationship, and men know their future lives will not be unexpectedly jolted by news of having fathered children unknown to them.

Voluntary Petitions

Most states will permit a father to execute an affidavit acknowledging paternity, which eliminates the need for a court action. The affidavit must also be signed by both mother and father, notarized, and filed with the court. Once a paternity affidavit is filed and signed by a judge (if required by state law), the father cannot later attempt to rescind or void the affidavit. If the father's name does not already appear on the child's birth certificate, a corrected one will be reissued, showing the names of both parents.

Paternity affidavits are often encouraged to remove the stigma sometimes attaching to children who may grow up believing they were unwanted because a parent denied or avoided parentage. Attendant to a voluntary petition for a paternity determination are other determinations that the court may rule on at the same time, mostly addressing the support, involvement, and active role in a child's life that the father will assume.

Voluntary Testing

Likewise, voluntary submission of a DNA sample produces the same result as voluntary affidavits, without an adversarial court proceeding. Generally, testing involves a saliva sample, taken from the mouth with a cotton swab. Costs usually range from $200 to $600, and some health or medical insurance companies will cover the cost of the test. Laboratories that may perform such voluntary tests are generally listed in telephone directories under "Genetic Screening."

Formal Paternity Proceedings

In most states, a paternity action takes the form of a civil lawsuit, and is clearly not a criminal matter. Importantly, in most instances, paternity actions must be filed prior to the alleged father's death, to provide for a fair and just defense. In posthumous actions, the alleged father must have affirmatively done something to acknowledge the child prior to death (e.g., putting his name on the child's birth certificate or identifying himself as the father in some other legal or formal action).

Standing

Only certain persons or parties have legal standing to bring a paternity action:

• the mother of the child
• the mother of an expected child
• a man alleging that he is the biological father of a child
• a man alleging that he is the biological father of an expected child
• the child
• a personal representative of the child
• the mother and father of a child (a voluntary action filed together)

• the mother and father of an expected child (a voluntary action filed together)
• a state social service agency, interceding in cases of child neglect or need
• a prosecutor's office, interceding in cases of child neglect or need

Complaint for Paternity

The complaining party has the legal burden of establishing requisite facts in a paternity action. A petition filed with the court should contain the following basic statements:

• a citation of the state paternity statute under which the action is being brought (the legal authority)
• a statement of residency for the complaining party (for establishing the court's jurisdiction over the parties)
• a statement of residency for the responding party (for establishing the court's jurisdiction over the parties)
• the child's full name and date of birth
• a statement of relationship between the complaining party and the child or unborn child
• a statement of relationship between the responding party and the child or unborn child
• a statement that the child was or was not born while the mother was married to someone else
• a statement addressing the status of any pending custody or visitation actions related to the child
• a statement of any facts tending to support a finding of paternity

Similar to other civil suits, the party who files the action will be responsible for providing supporting documents, paying the filing fee with the court, and serving the responding party with a summons and copy of the complaint. There is usually a requirement that other necessary parties be notified. For example, if the action is filed by a guardian of the child or a social services office, the mother or anyone having legal custody of the child must be served along with the alleged father.

A court will not automatically order paternity tests simply because a paternity action has been filed. It will review the petition to determine if there is sufficient information contained therein to warrant or justify the compelling of such a test. If the court orders a paternity test, the mother, child, and alleged father will all be tested at a court-designated facility. If the man did not initiate the paternity action, and test results determine that he is not the father, the cost of the testing will be charged to the party who filed the paternity action.

A court determination of paternity is final, and a copy of the court's order will be needed to establish the child's rights, both present and future. Parties should seek court-certified "true copies" of original orders.

Challenging Paternity

Even with the proven accuracy of DNA testing, it is possible, though improbable, that the results are incorrect. Some of the grounds for challenging a paternity determination include:

• Tainted lab results (e.g., evidence of prior errors in lab results and routinely substandard work)
• Fraudulent lab results (e.g., evidence that the opposing party sent someone else to take the lab test on his behalf)
• Proof of infertility/sterility
• Proof that test results were tampered with

The Uniform Parentage Act

The Uniform Parentage Act has been adopted in at least a third of the states. One of its most significant provisions is an expansion of persons with standing to bring a paternity action before a court. Under the Act, any interested party may file a paternity suit on behalf of a child.

State Laws

The following state provisions address proper designation of parties in an action for paternity, custody, child support, and termination of parental rights. All of these issues may be ruled upon in conjunction with a paternity action:

• AL: (C.A. 30-2-1) Plaintiff v. Defendant. Custody Factors: moral character, age and gen-der of child. Child Support: until age 19, either party may be ordered to pay, "as may seem right and proper," based on moral character and prudence, age and gender of child. Termination of Parental Rights: abandonment; emotional illness or mental illness or deficiency; excessive substance abuse; physical injury resulting from neglect; felony conviction.
• AK: (A.S. 25.24.010) Plaintiff v. Respondent. Custody Factors: best interests of the child, various criteria. Child Support: until age 18. Termination of Parental Rights: noncustodial parent withholds consent to adoption, child conceived as a result of sexual abuse of a minor.
• AZ: (A.R.S. 25-311) Petitioner v. Respondent. Custody Factors: best interests of the child, various criteria. Child Support: until age 18, either party may be ordered to pay, "as may seem right and proper," based on moral character and prudence, age and gender of child. Termination of Parental Rights: abandonment; neglect or willful abuse; emotional illness or mental illness or deficiency; felony conviction; potential father failed to file paternity action within 30 days as prescribed by law; formal relinquishment of rights.
• AR: (A.C.A. 9-12-301) Plaintiff v. Defendant. Custody Factors: best interest of child, without regard to gender of parent. Child Support: until age 18, Termination of Parental Rights: abandonment; neglect or abuse; non-custodial parent withholds consent to adoption.
• CA: (Several Code provisions)Petitioner v. Respondent. Irrebutable presumption of paternity for husband for all children born during marriage. Custody Factors: best interests of child; nature and contact with each parent; any other relevant factor. Child Support: until age 18. Termination of Parental Rights: abandonment; neglect or abuse; emotional illness or mental illness or deficiency; substance abuse.
• CO: (C.R.S.A. 14-10-106) Petitioner v. Respondent. Custody Factors: best interests of child, including wishes of all parties. Child Support: until age 21. Termination of Parental Rights: physical or sexual abuse; emotional illness or mental illness or deficiency; substance abuse; violent conduct.
• CT: (C.G.S.A. 46b-40) Plaintiff v. Defendant. Custody Factors: best interests of the child, law favors joint custody. Child Support: until age 18, either party may be ordered to pay, various criteria. Termination of Parental Rights: abandonment or neglect.
• DE: (D.C.A. 13-1502)) Petitioner v. Respondent. Custody Factors: best interests of child. Child Support: until age 18. Termination of Parental Rights: abandonment or neglect; emotional illness or mental illness or deficiency; felony conviction in which child was a victim.
• DC: (D.C.C. 16-901-916) Plaintiff v. Defendant. Custody Factors: best interest of child. Child Support: until age 18. Termination of Parental Rights: physical, emotional or mental illness or deficiency; substance abuse.
• FL: (F.S. 61.001) Petitioner v. Respondent. Custody Factors: Joint is preferred, but best interests of child to establish primary residence. Child Support: until age 18. Termination of Parental Rights: abandonment; egregious conduct which threatens life or wellbeing of child; incarceration.
• GA: (C.G.A. 19-5-1) Petitioner v. Respondent. Custody Factors: non-specific, but children over 14 can choose which parent to live with. moral character, age and gender of child. Child Support: until age 18.Termination of Parental Rights: abandonment; emotional illness or mental illness or deficiency; excessive substance abuse; physical or emotional neglect; felony conviction.
• HI: (H.R.S. 580-41) Plaintiff v. Defendant. Custody Factors: best interests of child, child's wishes. Child Support: until age 18, Termination of Parental Rights: abandonment; emotional illness or mental illness or deficiency; neglect.
• IL: (750 ILCS 5/101) Petitioner v. Respondent. Custody Factors: wishes of the parties and child, and additional criteria Child Support: until age 18 (750 ILCS 5/505). Termination of Parental Rights: abuse.
• IN: (A.I.C. 31-1-11.5) Petitioner v. Respondent. Custody Factors: wishes of the parties and child, and additional criteria Child Support: until age 18. Termination of Parental Rights: abandonment; emotional illness or mental illness or deficiency; best interest of the child.
• IA: (I.C.A. 598.1) Petitioner v. Respondent. Custody Factors: best interests of child, various factors. Child Support: until age 18. Termination of Parental Rights: abandonment; abuse or neglect; emotional illness or mental illness or deficiency; excessive substance abuse.
• KS: (K.S.A. 60-1601) Petitioner v Respondent. Custody Factors: moral character, age and gender of child. Child Support: until age 19, either party may be ordered to pay, "as may seem right and proper," based on moral character and prudence, age and gender of child. Termination of Parental Rights: emotional illness or mental illness or deficiency; abuse or neglect; substance abuse; physical injury resulting from neglect; felony conviction.
• KY: (K.R.S. 403.010) Petitioner v Respondent. Custody Factors: best interest of the child, considering various factors. Child Support: until age 18. Termination of Parental Rights: abandonment; abuse or neglect.
• LA: (LSA C.C. Art. 102) Plaintiff v. Defendant. Custody Factors: Joint custody is preferred; best interest of child using various factors.moral character, age and gender of child. Child Support: until age 18 (LSA Rev. St. 9:315) Termination of Parental Rights: abandonment; extreme abuse, all forms; misconduct of parent toward child.
• MN: (19 M.R.S.A. 661) Plaintiff v. Defendant. Custody Factors: best interest of child, various factors. Child Support: until age 18. Termination of Parental Rights: abandonment; misconduct toward child; felony conviction where child was the victim.
• MD: (A.C.M Familly Law 7-101) Plaintiff v. Defendant. Custody Factors: none. Child Support: until age 18. Termination of Parental Rights: child has been out of the custody of natural parents for over one year; abuse conviction; crime of violence conviction.
• MA: (A.L.M. C208-1) Plaintiff v. Defendant. Custody Factors: none in statute. Child Support: until age 18. Termination of Parental Rights: abandonment; all forms of neglect or abuse; felony conviction.
• MI: (M.C.L.A. 552.1/M.S.A. 25.96) Complainant v. Defendant. Custody Factors: best interest of child, with various factors. Child Support: until age 18 or beyond if still completing high school. Termination of Parental Rights: abandonment; all forms of abuse; parental long-term imprisonment; chronic neglect.
• MN: (M.S.A. 518.002) Petitioner v Respondent. Custody Factors: the parties' wishes and child's preference, if of sufficient age, various factors. Child Support: until age 18 (M.S.A. 518.551). Termination of Parental Rights: abandonment; unfit parent; chemical dependency of parent; parent palpably unfit; abuse or neglect; child experienced severe harm while in parent's care.
• MS: (M.C. 93-5-1)Complainant v. Defendant. Custody Factors: none by statute, but child of 12 may choose. Child Support: until age 21. Termination of Parental Rights: abandonment; emotional illness or mental illness or deficiency; abusive incidents; substance abuse.
• MO: (A.M.S. 452.300) Petitioner v Respondent. Custody Factors: best interest of child, various factors. Child Support: until age 18. Termination of Parental Rights: abandonment; abuse or neglect; child was conceived as a result of rape; substance abuse; felony conviction in which child was victim.
• MT: (M.C.A.40-4-101) Petitioner v Respondent. Custody Factors: parties' wishes, various factors. Child Support: until age 18, various factors. Termination of Parental Rights: unfit parent; absence of child-parent relationship; irrevocable waiver.
• NE: (R.S.N. 42-301) Petitioner v Respondent. Custody Factors: best interest of child, considering various factors. Termination of Parental Rights: abandonment; emotional illness or mental illness or deficiency; excessive substance abuse; physical injury resulting from neglect; felony conviction. Plaintiff v. Defendant.
• NV: (N.R.S.A. 125.010) Plaintiff v. Defendant. Custody Factors: best interest of child, various factors. Child Support: until age 18. several factors. Termination of Parental Rights: abandonment; neglect; parental unfitness; risk of physical, mental, or emotional harm to child.
• NH: (N.H.R.S.A. 458:4) Petitioner v Respondent. Custody Factors: joint custody presumed in the child's best interest. Child Support: until age 18, both parties responsible. Termination of Parental Rights: abandonment; emotional illness or mental illness or deficiency; all forms of abuse or neglect; felony conviction.
• NJ: (NJSA 2A:34-2) Plaintiff v. Defendant. Custody Factors: best interest of child, various factors. Child Support: until age 18. Termination of Parental Rights: abandonment; or potential for harm to child.
• NM: (N.M.S.A. 40-4-1) Petitioner v Respondent. Custody Factors: best interest of child, various factors. Child Support: until age 18. Termination of Parental Rights: abandonment; neglect or abuse; child placed in the permanent care of others.
• NY: (C.L.N.Y, D.R.I 170) Plaintiff v. Defendant. Custody Factors: best interest of child. Child Support: until age 18, needs are determined as a percentage of parents' combined income. Termination of Parental Rights: abandonment; emotional illness or mental illness or deficiency; surrender of child to authorities.
• NC: (G.S.N.C. 50-1) Plaintiff v. Defendant. Custody Factors: best interest of child. Child Support: until age 18, various factors. Termination of Parental Rights: neglect or abuse; leaving child in foster care for more than 12 months; abandonment.
• ND: (N.D.C.C. 14-05-01) Plaintiff v. Defendant. Custody Factors: several factors. Child Support: until age 18. Termination of Parental Rights: neglect or misconduct, faults or habits of parent; physical illness or mental illness or deficiency; child suffers from mental, moral, or emotional harm.
• OH: (O.R.C. 3105.01) Plaintiff v. Defendant. Custody Factors: best interest of child, with various factors. Child Support: until age 18, medical insurance payment must be made to enforcement agency. Termination of Parental Rights: abandonment; abuse or neglect.
• OK: (43 O.S.A. 101) Plaintiff v. Defendant. Custody Factors: best interest of child and child preference. Child Support: until age 18. Termination of Parental Rights: abandonment; conviction for child abuse or neglect; all forms of abuse; emotional illness or mental illness or deficiency.
• OR: (O.R.S. 107.015) Petitioner v Respondent. Custody Factors: joint custody only awarded of both parties agree. Child Support: until age 18. Termination of Parental Rights: physical or sexual abuse or neglect; emotional illness or mental illness or deficiency; substance abuse.
• PA: (Pa.C.S.A. 3101) Plaintiff v. Defendant. Custody Factors: best interest of child, various factors. Child Support: until age 21. Termination of Parental Rights: abandonment; abuse or neglect; child removed from parents by court; child conceived as a result of rape or incest.
• RI: (G.L.R.I. 15-5-1) Plaintiff v. Defendant. Custody Factors: best interest of child. Child Support: until age 18. Termination of Parental Rights: abandonment; emotional illness or mental illness or deficiency; parental unfitness.
• SC: (C.L.S.C. 20-3-10) Plaintiff v. Defendant. Custody Factors: various factors in interest of child. Child Support: until age 18. Termination of Parental Rights: best interest of child; abuse or neglect; abandonment; substance abuse; mental of physical deficiency of parent.
• SD: (S.D.C.L. 25-4-1) Plaintiff v. Defendant. Custody Factors: "as may seem necessary and proper." Child Support: until age 18. Termination of Parental Rights: abandonment.
• TN: (T.C.A. 36-4-101) Petitioner v Respondent. Custody Factors: Best interest of child, various factors. Child Support: until age 18. Termination of Parental Rights: abandonment; child removed by court order; severe child abuse; incarceration sentence of 10 years; incompetency.
• TX: (T.C.A., F.C. 3.01) Petitioner v Respondent Custody Factors: referred to as "managing conservatorship," various factors.moral character, age and gender of child. Child Support: until age 19, either party may be ordered to pay, "as may seem right and proper," based on moral character and prudence, age and gender of child. Termination of Parental Rights: abandonment; abuse or neglect; sexual abuse of other child by parent.
• UT: (U.C. 30-3-1) Plaintiff v. Defendant. Custody Factors: best interest of child, various factors. Child Support: until age 18 (U.C. 78-45-7). Termination of Parental Rights: abandonment; neglect or abuse; parental unfitness.
• VT: (15 V.S.A. 551) Plaintiff v. Defendant. Custody Factors: best interest of child, various factors. Child Support: until age 18. Termination of Parental Rights: failure to support child or exercise parental responsibility; conviction of crime of violence; risk of harm to child.
• VA: (C.V. 20-91) Plaintiff v. Defendant. Custody Factors: best interest of child, various factors. Child Support: until age 18. Termination of Parental Rights: emotional illness or mental illness or deficiency; neglect or abuse; habitual substance abuse.
• WA: (R.C.W.A. 26.09.010) Petitioner v Respondent. Custody Factors: each parties relative fitness and agreement between parties, other criteria. Child Support: until age 18. Termination of Parental Rights: habitual substance abuse; emotional illness or mental illness or deficiency.
• WV: (W.V.C. 48-2-1) Plaintiff v. Defendant. Custody Factors: none, but presumption in favor of primary caretaker. Child Support: until age 18. Termination of Parental Rights: abandonment; abuse or neglect.
• WI: (W.S.A. 767.001) Petitioner v Respondent. Custody Factors: "legal custody and physical placement." Best interest of child. Child Support: until age 18. Termination of Parental Rights: abandonment; continuing need for protective services; abuse; failure to assume parental responsibility; incestuous parenthood; intentional killing of other parent.
• WY: (W.S.A. 20-2-104) Plaintiff v. Defendant. Custody Factors: best interest of child. Child Support: until age 18. Termination of Parental Rights: abandonment; neglect or abuse; parental incarceration or unfitness.

Stanley, Jacqueline D. Unmarried Parents' Rights. 2nd Edition, 2003. Naperville, IL: Sphinx Publishing

Organizations

American Coalition for Fathers and Children

1718 Main Street NW, Suite 187
Washington, DC 20036 USA
Phone: (800) 978-DADS
URL: www.acfc.org

Parents Anonymous

675 West Foothill Drive, Suite 220
Claremont, CA 91711-3475 USA
Phone: (909) 621-6184
URL: www.parentsananymous.org

PATERNITY

The state or condition of a father; the relationship of a father.

English and U.S. common law have recognized the importance of establishing the paternity of children. In the United States, a child born outside a legal marriage relationship will lose child support and inheritance rights if the fatherhood of the child is not legally established. The father may voluntarily acknowledge paternity in a legal document filed with a court or may agree to have his name listed as the father on the child's birth certificate. If the man disputes fatherhood, the mother or the state government may initiate a legal proceeding, known as a paternity action, to adjudicate fatherhood.

The common law also established the "marital paternity presumption," which holds that a child born during a marriage is the offspring of the husband. Therefore, a child born as a result of the wife's adulterous affair is recognized as a legitimate child of the marriage. This rule recognized that illegitimacy brought social stigma as well as severe economic penalties to a child, including the inability to inherit from the husband of the child's mother. By establishing a presumption of paternity and therefore legitimacy, the rule promoted family stability and integrity.

This rule was developed at a time when no medical tests existed to prove paternity. In addition, a husband could not testify that he had no access to his wife at the time of conception. A husband could rebut the marital presumption only by proving his impotence or his absence from the country.

By the late nineteenth century, U.S. courts began to allow the defense of impossibility to rebut the marital presumption. The question of paternity became a fact that could be rebutted by clear and convincing evidence that procreation by the husband was impossible.

The Impossible Heir

In contemporary law the legal determination of paternity generally rests on the results of blood and genetic testing. However, there are times when it can be proved that it was impossible for a husband to be the father of his wife's child because the husband was absent during the period when conception occurred.

In an unusual reversal of modern law on paternity, the Alabama Supreme Court, in Tierce v. Ellis, 624 So. 2d 553 (1993), found that Dennis Tierce was the legitimate son of William Tierce, even though William was serving overseas in the armed forces during world war ii when Dennis was conceived.

William Tierce returned from the war to Alabama in December 1945 to discover that his wife Irene was six months pregnant. He immediately filed for divorce on the ground of adultery. The divorce was granted in February 1946. On April 4, 1946, Dennis Tierce was born. William Tierce was erroneously listed as the father on the birth certificate, but Tierce never knew of this mistake. He remarried and had five children, including his daughter, Sheila Ellis.

William Tierce died in 1972. When the executors of his estate filed a list of heirs in 1989, they listed Dennis as William's son. Sheila Ellis filed suit, challenging the paternity of Dennis and his status as an heir. The trial court ruled that it was impossible for Dennis to be the biological son of William.

The Alabama Supreme Court reversed, basing its decision on two grounds. First, under the Alabama Uniform Parentage Act (Ala. Code §§ 26-17-1 et seq. [1992 and Supp. 1994]), a husband is presumed to be the father of a child born within three hundred days of a divorce. Dennis was born sixty days after his parents' divorce. Second, the court invoked the common law rule of repose, which requires a prompt disposition of a legal dispute. The court concluded that because William Tierce did not seek a paternity judgment during his divorce proceedings in 1946, his daughter could not now attempt to rebut the marital paternity presumption. Therefore, Dennis Tierce, the impossible heir, could claim a share of the estate of a person he never knew and to whom he was not related.

In 1973 the commissioners on uniform laws proposed the Uniform Parentage Act (UPA), which sought to establish a consistent rule on adjudicating paternity disputes. The UPA, which has been adopted by 18 states, continued to use the marital paternity presumption. In addition, it presumes a mother's husband to be the natural father of a child if the child is born during the marriage or within 300 days after the marriage is terminated. The UPA does state, however, that a presumption of paternity may be rebutted by clear and convincing evidence.

Modern science has made the adjudication of paternity issues easier. Modern blood and genetic testing can accurately determine paternity. Human leukocyte antigen tissue typing can provide up to a 98 percent probability that a certain man is the father of a particular child. The use of DNA testing provides near-positive paternity identification. Many states that have adopted the UPA have created a presumption of paternity based solely on genetic testing. Some courts have questioned the need for the marital presumption at all because of the certainty produced by testing.

The evolving state of the martial presumption of paternity can be seen in the revised Uniform Parentage Act (UPA), published in 2000. While the new UPA retains all of the original presumptions related to marriage, it eliminates the clear and convincing evidence standard for rebutting an assumption of paternity. Instead it states that the presumption may be rebutted "only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child." The most recent UPA states: "The existence of modern genetic testing obviates this old approach to the problem of conflicting presumptions when a court is to determine paternity."

In determining a husband's paternity, the court may deny a request for genetic testing if it finds by clear and convincing evidence that the conduct of the mother or the presumed father means it would be unfair to allow that party to deny parentage and it would be wrong to end the father-child relationship. According to the new UPA, the alleged biological father of a child born to a married mother now has standing to bring an action to determine the existence or non-existence of the parent-child relationship. The new UPA also adopts a time limit to rebut the marital presumption to two years following the birth of the child if the presumed father lived in the same household as the child or treated the child as his own.

In addition to the changing provisions of the new UPA, genetic testing has also allowed most states to expand the categories of persons who can challenge the martial presumption and increase the chances that such challenges will be successful. With that, the marital presumption of paternity has become eroded. Twenty-two states now set a scientific standard for a conclusive presumption of non-paternity, while eight states establish a scientific standard for a conclusive presumption of paternity.

But despite the new emphasis on genetic testing, both the newly revised UPA and most state laws and courts put some emphasis on the best interests of the child. In states such as Arizona, Wisconsin, Kansas, Maryland, Montana and Minnesota, courts have said that the best interest of the child must be taken into account when determining paternity. In some cases, courts have upheld the right to refuse genetic tests if it is determined they are not in the best interest of the child; others have stated the best interests of the child must be taken into account after the genetic testing determines paternity.

further readings

Glennon, Theresa. 2000. "Somebody's Child: Evaluating the Erosion of the Marital Presumption of Paternity." West Virginia Law Review 102.

McDuff, Lawrence J. 1994. "The 'Inconceivable' Case of Tierce v. Ellis." Alabama Law Review 46.

National Conference of Commissioners on Uniform State Laws. 2000. "Uniform Parentage Act." Uniform Laws Annotated. St. Paul, Minn.: West Group

cross-references

DNA Evidence; Family Law; Paternity Suit.

PATERNITY

Paternity, the state of being a father, can be legally established in several ways. When the parents of a child are married, paternity is commonly presumed. However, to determine whether a man is the father of a child born out of wedlock, a lawsuit known as a "paternity action" must be brought. In such a suit, paternity may be established if the alleged father admits paternity. If a man fails to participate in the process, then paternity may be fixed by default, or a judge may order that he provide a blood sample to compare blood types and, if necessary, DNA types with that of the mother and child.

Blood-group studies, which commonly employ the ABO system, cannot establish paternity but can conclusively exclude an alleged father from being a candidate. This is the case because a child must inherit his or her blood type (A, B, or O) from the mother or father; thus, if the child's blood type differs from both the mother's and the alleged father's types, the man could not possibly be a parent of the child. To conclusively establish paternity, DNA typing is required. Adequate samples for DNA typing can be collected from blood, semen, or body tissue such as the inside of the cheek. DNA typing compares strands of genetic material between the child and alleged father. While most courts in the United States require accuracy of 99 percent to establish paternity, comparing strands from various locations of the genetic material allows accuracy ratings of 99.9 percent. DNA typing allows an alleged father to be excluded with 100 percent certainty.

Upon the conclusion of a paternity action, the judge's order establishes paternity. Once paternity is determined, the court can consider the issues of custody, visitation, and child support. Paternity actions are also brought in cases involving family inheritances, insurance benefits, social security claims, immigration requests, and to establish the peace of mind associated with being able to determine whether the child may be at risk for any hereditary disease.

John R. York

Jeffrey A. Linsker

(see also: Child Welfare; Public Health and the Law )

pa·ter·ni·ty / pəˈternitē/ • n. 1. (esp. in legal contexts) the state of being someone's father: he refused to admit paternity of the child.2. paternal origin: his enemies made great play of the supposed dubiety of his paternity.

Paternity ★★ 1981 (PG)

Routine comedy about middle-aged manager of Madison Square Gardens (Reynolds) who sets out to find a woman to bear his child, no strings attached. The predictability of the happy ending makes this a yawner. Steinberg's directorial debut. 94m/C VHS . Burt Reynolds, Beverly D'Angelo, Lauren Hutton, Norman Fell, Paul Dooley, Elizabeth Ashley; D: David Steinberg; W: Charlie Peters; M: David Shire. Golden Raspberries ‘81: Worst Song (“Baby Talk”).