“Paternity” and “Parentage” are terms referring to the issue of establishing legally that a person who was not married to the mother of a child at the child’s birth is the legal father of that child. A husband is presumed to be the father if a child is born during a marriage or within 300 days of the termination of a marriage by death, annulment, divorce, or legal separation.
We advise unmarried parents on issues relating to:
- Filing a court application to establish paternity;
- Determining decision-making responsibilities;
- A parenting schedule and;
- Child support.
In cases where an unmarried father may agree to paternity, the parties may sign a form acknowledging the parentage. A parent may also attempt to establish paternity through the courts by filing the appropriate application. The court will then have the father submit to genetic or DNA testing. Once paternity is established, decision-making responsibility, parenting time, and child support must be determined.
I am legally married to my child’s mother. Do I still need to establish parentage?
No. If you and the other parent are legally married at the time the child is born, then you are both automatically considered to be the legal parents. This is called the presumption of legitimacy. You do not have to establish parentage in court. For example, a married woman’s husband is automatically presumed to be the legitimate father of her children.
The presumption of legitimacy also means that you can be considered the legal parent of a child even if the child is not biologically yours. You can challenge the presumption of legitimacy in court by proving that you were not available when the mother became pregnant. Examples may be if you were incarcerated or serving in the military overseas. Proving this can be complicated. Speak with a lawyer if you have questions.
I am not sure if I am the father of a child. Can I get a DNA test from court?
Sometimes. In a paternity case, you may request a DNA test in court. If the DNA test comes back at least 95% positive, then the court will enter an order of filiation. The court will not order a DNA test if it is not in the best interests of the child. This is known as equitable estoppel.
Can the court refuse to order a DNA test?
Yes. The court may not order a DNA test in a parentage case if the court finds that equitable estoppel applies, i.e., estoppel by conduct or representation. Equitable estoppel can prevent you from challenging parentage if you have been acting as the child’s parent and the child recognizes you as their parent. This is true even if you are not the child’s biological parent.
The court may hold a hearing to see if equitable estoppel applies in your case. The court is mainly concerned with what is in the best interests of the child. The best interests of the child is the standard that the court uses to make decisions about a child. The court can use equitable estoppel to protect the father-child relationship that is already in place. Examples of when equitable estoppel might apply are if the child calls you “dad” or if you provide support for the child. Every case is different.
If equitable estoppel comes up in your case, the court may assign a lawyer to represent your child.
Equitable estoppel can be complicated. Our lawyers will guide you through the process.