Do You have a Paternity Issue? A Family Law Attorney Can Help In This Legal Process
If you are a man and you fathered a child with a woman out of wedlock (even if the woman was married and she became pregnant with your child during that marriage), or, if you are a woman and you had a child with a man out of wedlock (meaning with a man not your husband and you have no claim for a common-law marriage), and, if you did not have a notarized Affidavit of Paternity issued and then, filed with the Vital Statistics Department when the child was born, you will need to file a suit for paternity in order to legitimize that child and to receive a legal determination as to who the biological father of the child is.
Signing a child’s Birth Certificate when the baby is born, or after, is not sufficient evidence to prove Paternity.
Filing a Suit for Paternity
Filing a Suit for Paternity is sometimes called “legitimizing a child.” What this means is that until an order is entered or a legal determination has been made as to whom the father of a child is that was born out of wedlock and/or to a man not your husband, the child is illegitimate and only a legal finding can make that child legitimate. And, if you are the father of an illegitimate child, and you wait too long to file a Paternity suit or action in court and your child ages-out above 18 years of age, you will not be able to file a suit for Paternity and legitimize your child as your biological child, unless you initiate an adult adoption after the age of 18. Further, if you do not dispute Paternity if your child was born to the marriage of another person, that child will legally be the child of the man the woman is married to, not you. Therefore, filing a suit for Paternity is very important on many levels.
Filing a Suit for Paternity is complex process, especially if the biological mother and father of the child do not agree as to custody, legal decision making, or child support. If you are experiencing issues with another parent, it is highly recommended that you hire a qualified Paternity lawyer or Family Law attorney who understands paternity law, to assist you, to ensure that the process is done correctly, to ensure that your rights are protected, and to ensure that your child has a positive relationship with both of its’ parents (especially if that child was conceived during another person’s marriage and the child’s biological father is not the husband of that marriage).
If you are a father and your child was conceived during a marriage that the biological mother was involved in, and if she was not legally divorced when the child was born, that child’s legal father is the husband of that marriage, and the husband will also need to be sued and served with the Paternity action in order to correct the legal presumption, even if the biological mother later divorces the man that she was married to. It is highly recommended that you hire a qualified paternity attorney if the biological mother was legally married when the child was born, as this process can be an arduous, have many legal issues involved, will require proper orders to be entered, and emotions usually flare and effect the process.
The initial action to determine Paternity in Texas, which is filed in the District Court, and is called a “Petition for Paternity” or “Suit for Paternity.” Further, these cases should also include a request for custody determination and child support to be paid so that the child is taken care of. As these types of cases involve a considerable amount of complexity including other actions that need to be pled for in the Petition such as additional needs, day care, medical issues, insurance, etc., it is best to retain an experienced and qualified Paternity attorney or Family Law attorney at the beginning of the process, and not when you start having issues with your case, and as it will be much less costly for you as to legal fees, if the case is handled correctly from the beginning and not after issues continue to rise.
If you are a fit parent and you believe that the child would benefit with equal custody or if you feel the other parent is not fit to have custody with the child, an experienced Paternity lawyer can assist you in making sure that the court hears the evidence necessary to establish orders so that the correct parent has the right amount of legal rights and custody time with your child.
Establishing Paternity through DNA or Affidavit
In most states, Paternity can be established through an Affidavit of Acknowledgement of Paternity, an Affidavit of Paternity, or through DNA testing.
What is a DNA test? A DNA test is genetic testing of usually two individuals. In order for a person to be a child’s biological father they would need at least a 99 percent finding of genetic probability. DNA testing results need to be submitted to the court during the Paternity suit and can cause the parties to agree to the paternity of the child in court, if there was a previous dispute as to who the father of the child really was. DNA tests are now close to 100% accurate and if there is, or was, a question as to who the father of the child is, having a DNA test performed may be the best option. If you sneak and have a test performed such as a DNA test kit, or if one of the parents of the child does not agree to a DNA test, or even if they do, you should wait for the court action and for the court to order the DNA testing, as having a test done before a court’s order is issued, may result in you having to re-test as the court may require a certain DNA test to be performed. Of course if you have a DNA test performed before proceeding to court, you can always submit that test result to the court, however, the court may make you take another DNA test at a location that notices the court of the results.
What is an Affidavit of Paternity? An Affidavit of Paternity is a legal instrument that allows a father and mother of a child to swear before a notary that the biological father of a child is a certain person. The form is available usually on your state’s Department of Vital Statistics website. That form, after being filled out and notarized, is then filed with the Department of Vital Statistics. That form, once filled, can be used to substantiate a father’s rights as to paternity of a child and may be able to be included as a prima facie finding in your Paternity action that you are the biological father of a child if both parent’s agree (these affidavits can be challenged in court and may not be considered proof of paternity). However, that Affidavit does not establish custody, child support and insurance obligations and therefore, in order to get these types of orders entered, you will need to file a Paternity suit with the court and it is recommended that you retain proper counsel to assist you in this suit before the court. Hiring a qualified Child Custody lawyer or a Family Law attorney who can provide you with legal advice and the necessary information that you need, may allow you to ensure that you are successful in this process and that your goals and desires are accomplished.
Challenging a Paternity Ruling or Paternity Order
If you believe that you are not the biological father of a child, or you want to correct a current paternity or custody order, or if you want to challenge a paternity order or paternity ruling, even if you did not have DNA test performed initially, in most states there is flexibility, however, after a certain period of time, the courts will not allow a child to be harmed by removing its presumed father.
In Texas, legally a person has up to four years to challenge or dispute the paternity of a child, and if you do not challenge the paternity order before that time, there is little to no way to reverse the order of the court and you will remain the legal father. However, in Texas, in 2011 a law was enacted that makes it a little easier for a person named a father of a child, to challenge a paternity order, such as if you can prove that you were incarcerated during the legal process or if you meet other legal guidelines. This law, or if the order is reversed or vacated before the statute expires, can lead you to not have to continue to providing financial or medical support to a child who isn’t yours. If you challenge under Senate Bill 785, this law does allow you to challenge a previous order, above the four year statute of limitations. You will need to provide proof to the court as to why the order should be vacated such as why you believe that you are not the biological father of the child and why you did not come forward before-hand, etc. If you believe that you are not the biological father of a child, and there is a current order saying that you are, you will need to retain counsel to meet with you to determine if you qualify for a suit to be filed to reverse or vacate the current order.
If you meet the statutory requirements to file a paternity challenge before the court, during this challenge, the court you may order you to have DNA test performed with the child, even if the mother later agrees that you are not the child’s biological father. The cost of the DNA test can be imposed on you and other court costs can be imposed on you if the suit or complaint to reverse or vacate the current paternity order is found to have been unwarranted or filed by you frivolously.
Challenging an Affidavit of Paternity
If you filed an Affidavit of Paternity with your state’s Vital Statistics Dept. and if no order has been entered by a court naming a person as the biological father of a child, you may be able to rescind that Affidavit of Paternity. Again, these options are complex and require the assistance of an experienced Family Law attorney.
Retaining a Qualified Paternity Attorney to Help
If you are a person wanting to name a biological father and establish paternity to ensure that the correct father is involved in the child’s life; challenge a current paternity order; or if you want to obtain legal and custody rights to a child born outside of a marriage or limit another parent’s rights and the time they spend with a child born out of wedlock, contact the qualified and experienced family law lawyers, child custody attorneys and paternity attorneys at Goldstein & Scopellite, PC for assistance.