In a typical custody dispute, the custody of a child is usually decided between two biological parents. But, if the parents of the child were not married at the time of the birth, the father’s paternity will first have to be established before the court will grant visitation or custody. Here, the experts at Protokowicz & Rodier share information about what paternity is, how it is established and the legal significance of paternity in child custody.
What is paternity and why might a suit be brought?
Paternity is the legal establishment of the identity of an individual’s biological father. In most cases, when paternity is in question, a paternity suit is filed to establish either financial or physical responsibility, or to gain child visitation or custody. Contrary to some common misconceptions adding a man’s name to a child’s birth certificate does not establish his paternity. In many cases if there is question surrounding an individual’s parental rights, a judge will order an examination to determine biological paternity.
DNA is not the only way that paternity can legally be established by an individual, paternity can be voluntarily assumed or involuntary. Voluntarily assumed paternity is established or may be established by virtue of a legal presumption that applies, under the following circumstances:
- The couple bearing the child is married at the time of the child’s birth (legal presumption)
- Both parties of an unmarried couple sign an Affidavit of Parentage Form at the hospital incident to the birth of the child
Involuntary paternity, however, can be established when either the mother or the state brings a paternity lawsuit against the father and proves that said individual is the biological father of the minor child.. This will require to the father to submit to DNA or genetic testing which can be used to determine paternity with 98-99% accuracy.
Because paternity is not established only by a birth certificate, a father who is not married will need to intentionally acknowledge his paternity of the child to ensure that his rights do not come into question.
The Determination of Paternity and Parental rights/Custody
Independent of how the father’s paternity is established, there are several legal nuances that the determination of paternity may impact.
Paternity determination can be very significant for a mother, as this determination secures liability for financial child support from the father. In most cases, however, when paternity is established, the mother might also be required by subsequent Court Order or Custody Agreement to share either custody or visitation with the father.
The determination of paternity, through the eyes of the father, also plays a substantial role in the father’s life and the access to custody or visitation of his child. A man with established paternity of a child gains the right to seek custody or visitation of the child. Although establishing paternity is the first step is seeking custody, once established it does not ensure that the father will have custody or visitation rights. Custody of a child is determined based on the best interests of the child. Even if the father is not granted sole or joint physical, or legal, custody of the child, his proven paternity increases the chance that he could be granted visitation rights.
Once a man’s paternity is legally established, he can now be held accountable for both financial and care responsibilities of a child. In cases where the father is unwilling to fulfill these duties, a court can require him to financially support the child. If he does not pay, he may then be subject to various enforcement tactics to recover the owed child support funds. Establishment of Paternity also has broader implications in that a child determined to be the biological child of an individual acquires rights as that person’s heir, as it may relate to the estate of the father, and as his potential beneficiary of any health/medical, life insurance and other benefits, which the father may possess or maintain.
Both paternity and custody disputes come with their own set of unique challenges. If you or a loved one is in the process of establishing paternity or seeing custody of a child, and require legal assistance, please contact the attorneys at Protokowicz & Rodier online or by phone at 410.803.1839 to schedule your consultation today.
For more information about Child Custody Concerns, take a look at our FAQ of custody concerns here.