How can I get shared custody of my child born out of wedlock in Pennsylvania?
Full Question:
Answer:
In Pennsylvania, a paternity action must be brought within 18 years of the child's birth. The purpose of the action is to determine and establish who is the father of the baby.
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. If the parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until paternity is established.
All states have programs under which birthing hospitals give unmarried parents of a newborn the opportunity to acknowledge the father's paternity of the child. States must also generally help parents acknowledge paternity up to the child's eighteenth birthday through vital records offices or other entities designated by the state. The father will be shown on the birth certificate if he acknowledges paternity when or close in time to the birth, or the court orders the birth certificate to be changed to reflect the father’s name. A father can acknowledge paternity by signing a written admission or voluntary acknowledgment of paternity or paternity may be established by filing a civil lawsuit. 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. Generally, 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. 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 be tested at a court-designated facility.
Unmarried fathers have rights and duties similar to those of married fathers. For a father who wishes to establish that he is the biological parent, he can do so with relative ease of procedure. In most states, a paternity action takes the form of a civil lawsuit, and is clearly not a criminal matter. Only certain persons or parties have legal standing to bring a paternity action, including 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; and a prosecutor's office, interceding in cases of child neglect or need. 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.
The following are Pennsylvania statutes:
23 Pa.C.S.A. § 4342. Expedited procedure
(a) General rule. — The Supreme Court shall by general rule provide for
expedited procedures for the determination of paternity and the
determination and enforcement of support. The procedures shall include an
office conference; a conference summary to the court by the hearing
officer; an opportunity for the court to enter an order without hearing
the parties; and an opportunity for the parties to demand a full hearing
by the court.
(b) Alternate procedure. — The Supreme Court shall also provide an
alternate expedited procedure which may be adopted by local rule of the
courts of common pleas. The procedure shall include an office
conference; an evidentiary hearing before a hearing officer who shall be
an attorney; a transcript of the testimony; a report and recommendation
to the court by the hearing officer; and an opportunity for the filing of
exceptions with and argument before the court.
(c) Long arm procedures. — The Supreme Court shall by general rule
establish procedures for the exercise of long arm jurisdiction to
establish paternity and to establish and enforce support. Long arm
jurisdiction shall be used in preference to proceedings under Part VIII
(relating to uniform interstate family support) or VIII-A (relating to
intrastate family support) unless it would be more effective to proceed
otherwise. Long arm proceedings may be commenced or continued in any
county where the plaintiff resides regardless of whether the parties
maintained a family domicile in that county.
(d) Deleted.
(e) Default. — The court shall enter a default order establishing
paternity and enforcing support upon a showing that the defendant has been
properly served and has not appeared.
(f) Hearsay exception. — For proceedings pursuant to this section, a
verified petition, affidavit or document and a document incorporated by
reference in any of them which would not be excluded under the hearsay
rule if given in person is admissible in evidence if given under oath by
a party or witness.
(g) Payment record. — A copy of the record of support payments
certified as a true copy of the original by the custodian of the record
is evidence of facts asserted in it and is admissible to show whether
payments were made.
(h) Bills. — Copies of billing statements, bills for testing for
parentage and for prenatal and postnatal health care of the mother and
child furnished to the adverse party at least ten days before a court
proceeding are admissible in evidence to prove the amount of the charges
billed and to prove that the charges were reasonable, necessary and
customary.
(i) Transmission of documentary evidence. — Documentary evidence
transmitted to the domestic relations section by telephone, telecopier or
other means which do not provide an original writing may not be excluded
from evidence based on the means of transmission.
(j) Testimony. — In a proceeding under this part, a court may permit a
party or witness to be deposed or to testify by telephone, audiovisual or
other electronic means at a designated location.
23 Pa.C.S.A. § 4343. Paternity
(a) Determination. — Where the paternity of a child born out of wedlock
is disputed, the determination of paternity shall be made by the court in
a civil action without a jury. A putative father may not be prohibited
from initiating a civil action to establish paternity. The burden of
proof shall be by a preponderance of the evidence. Bills for pregnancy,
childbirth, postnatal care related to the pregnancy and genetic testing
are admissible as evidence without requiring third-party foundation
testimony and shall constitute prima facie evidence of amounts incurred
for such services or for testing on behalf of the child. If there is
clear and convincing evidence of paternity on the basis of genetic tests
or other evidence, the court shall upon motion of a party issue a
temporary order of support pending the judicial resolution of a dispute
regarding paternity. The Supreme Court shall provide by general rule for
entry of a default order establishing paternity upon a showing of service
of process on the defendant and a subsequent failure to appear for
scheduled genetic testing.
(b) Limitation of actions. -
(1) An action or proceeding under this chapter to establish the
paternity of a child born out of wedlock must be commenced within 18
years of the date of birth of the child.
(2) As of August 16, 1984, the requirement of paragraph (b)(1) shall
also apply to any child for whom paternity has not yet been established
and any child for whom a paternity action was brought but dismissed
because of a prior statute of limitations of less than 18 years.
(c) Genetic tests. -
(1) Upon the request of any party to an action to establish paternity, supported by a sworn statement from the party, the court or domestic relations section shall require the child and the parties to submit to genetic tests. The domestic relations section shall obtain an additional genetic test upon the request and advance payment by any party who contests the initial test.
(2) Genetic test results indicating a 99% or greater probability that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the genetic tests are not reliable in that particular case.
(3) To ensure the integrity of the specimen and that the proper chain of custody has been maintained, the genetic tests of the biological mother, the child or children in question and the alleged father should be conducted by an established genetic-testing laboratory in the course of its regularly conducted business activity, and certified records should be issued. The certified records shall be admissible into evidence without further foundation, authentication or proof of accuracy if no objection is made within ten days prior to trial. The laboratory must be certified by either the American Association of Blood Banks or the American Association for Histocompatibility and Immunogenetics.
(4) If the court or domestic relations section orders genetic testing, the domestic relations section shall pay the cost of the test, subject to recoupment from the alleged father if paternity is established.
(5) A determination of paternity made by another state, whether through judicial proceedings, administrative proceedings or by acknowledgment of paternity, shall be given full faith and credit in the courts of this Commonwealth.
(6) A determination of nonpaternity made by another state with respect to a public assistance recipient shall not be binding upon the Department of Public Welfare unless the defendant shows that the department had actual notice of the proceedings, including the date and time of any trial, and a fair opportunity to participate in all material proceedings through counsel of its own choice.
23 Pa.C.S.A. § 5102. Children declared to be legitimate
(a) General rule. — All children shall be legitimate irrespective of the marital status of their parents, and, in every case where children are born out of wedlock, they shall enjoy all the rights and privileges as if they had been born during the wedlock of their parents except as
otherwise provided in Title 20 (relating to decedents, estates and fiduciaries).
(b) Determination of paternity. — For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
(1) If the parents of a child born out of wedlock have married each other.
(2) If, during the lifetime of the child, it is determined by clear and convincing evidence that the father openly holds out the child to be his and either receives the child into his home or provides support for the child.
(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.
23 Pa.C.S.A. § 5103. Acknowledgment and claim of paternity
(a) Acknowledgment of paternity. — The father of a child born to an unmarried woman may file with the Department of Public Welfare, on forms prescribed by the department, an acknowledgment of paternity of the child which shall include the consent of the mother of the child, supported by her witnessed statement subject to 18 P.S. §4904 (relating to unsworn
falsification to authorities). In such case, the father shall have all the rights and duties as to the child which he would have had if he had been married to the mother at the time of the birth of the child, and the child shall have all the rights and duties as to the father which the
child would have had if the father had been married to the mother at the time of birth. The hospital or other person accepting an acknowledgment of paternity shall provide written and oral notice, which may be through the use of video or audio equipment, to the birth mother and birth father of the alternatives to, the legal consequences of and the rights and
responsibilities that arise from, signing the acknowledgment.
(b) Claim of paternity. — If the mother of the child fails or refuses to join in the acknowledgment of paternity provided for in subsection (a), the Department of Public Welfare shall index it as a claim of paternity. The filing and indexing of a claim of paternity shall not
confer upon the putative father any rights as to the child except that the putative father shall be entitled to notice of any proceeding brought to terminate any parental rights as to the child.
(c) Duty of hospital or birthing center. — Upon the birth of a child to an unmarried woman, an agent of the hospital or birthing center where the birth occurred shall:
(1) Provide the newborn's birth parents with an opportunity to complete an acknowledgment of paternity. The completed, signed and witnessed acknowledgment shall be sent to the Department of Public Welfare. A copy shall be given to each of the birth parents. This
acknowledgment shall contain:
(i) A signed, witnessed statement subject to 18 P.S. § 4904 (relating to unsworn falsification to authorities) by the birth mother consenting to the acknowledgment of paternity.
(ii) A signed, witnessed statement subject to 18 P.S. § 4904 by the birth father acknowledging his paternity.
(iii) A written explanation of the parental duties and parental rights which arise from signing such a statement.
(iv) The Social Security numbers and addresses of both birth parents.
(2) Provide written information, furnished by the department to the birth mother and birth father, which explains the benefits of having the child's paternity established, the availability of paternity establishment services and the availability of child support enforcement agencies.
(d) Conclusive evidence. — Notwithstanding any other provision of law, an acknowledgment of paternity shall constitute conclusive evidence of paternity without further judicial ratification in any action to establish support. The court shall give full faith and credit to an acknowledgment
of paternity signed in another state according to its procedures.
(e) Transfer. — The Department of Health shall transfer to the Department of Public Welfare all acknowledgments or claims of paternity filed with the Department of Health under prior statutes.
(f) Certifications. — The Department of Public Welfare shall provide necessary certifications under Part III (relating to adoption) as to whether any acknowledgment or claim of paternity has been filed in regard to any child who is a prospective adoptive child.
(g) Rescission. —
(1) Notwithstanding any other provision of law, a signed, voluntary, witnessed acknowledgment of paternity subject to 18 P.S. §4904 shall be considered a legal finding of paternity, subject to the right of any signatory to rescind the acknowledgment within the earlier of the following:
(i) sixty days; or
(ii) the date of an administrative or judicial proceeding relating to the child, including, but not limited to, a domestic relations section conference or a proceeding to establish a support order in which the signatory is a party.
(2) After the expiration of the 60 days, an acknowledgment of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, which must be established by the challenger through clear and convincing evidence. An order for support shall not be suspended during the period of challenge except for good cause shown.
(h) Penalties for noncompliance. — The department may impose a civil penalty of not to exceed $500 per day upon a hospital or birthing center which is not in compliance with the provisions of this section. A penalty under this subsection is subject to 2 P. S. Ch. 5 Subch. A (relating to practice and procedure of Commonwealth agencies) and Ch. 7 Subch. A
(relating to judicial review of Commonwealth agency action).
(i) Status of father. — The name of the father shall be included on the record of birth of the child of unmarried parents only if one of the following applies:
(1) The father and mother have signed a voluntary acknowledgment of paternity.
(2) A court or administrative agency of competent jurisdiction has issued an adjudication of paternity.
23 Pa.C.S.A. § 5104. Blood tests to determine paternity
(a) Short title of section. — This section shall be known and may be
cited as the Uniform Act on Blood Tests to Determine Paternity.
(b) Scope of section. -
(1) Civil matters. — This section shall apply to all civil matters.
(2) Criminal proceedings. — This section shall apply to all criminal proceedings subject to the following limitations and provisions:
(i) An order for the tests shall be made only upon application of a party or on the initiative of the court.
(ii) The compensation of the experts shall be paid by the party requesting the blood test or by the county, as the court shall direct.
(iii) The court may direct a verdict of acquittal upon the conclusions of all the experts under subsection (f). Otherwise, the case shall be submitted for determination upon all the evidence.
(iv) The refusal of a defendant to submit to the tests may not be used in evidence against the defendant.
(c) Authority for test. — In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the
court may resolve the question of paternity, parentage or identity of a child against the party or enforce its order if the rights of others and the interests of justice so equire.
(d) Selection of experts. — The tests shall be made by experts qualified as examiners of blood types, who shall be appointed by the court. The experts shall be called by the court as witnesses to testify to their findings and shall be subject to cross-examination by the parties. Any party or person at whose suggestion the tests have been ordered may demand that other experts qualified as examiners of blood types perform independent tests under order of court, the results of which may be offered in evidence. The number and qualifications of experts shall be determined by the court.
(e) Compensation of experts. — The compensation of each expert witness appointed by the court shall be fixed at a reasonable amount. It shall be paid as the court shall order. Subject to general rules, the court may order that it be paid by the parties in such proportions and at such times as it shall prescribe or that the proportion of any party be paid by the county and that, after payment by the parties or the county, or both, all or part or none of it be taxed as costs in the action. Subject to general rules, the fee of an expert witness called by a party but not appointed by the court shall be paid by the party calling him, but shall not be taxed as costs in the action.
(f) Effect of test results. — If the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity, parentage or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.
(g) Effect on presumption of legitimacy. — The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusions of all the experts as disclosed by the
evidence based upon the tests show that the husband is not the father of the child.
RULE 1910.15 PATERNITY
(a) Acknowledgment of Paternity. If the action seeks support for a child born out of wedlock and the alleged father is named as defendant, the defendant may acknowledge paternity in a
verified writing. the conference officer shall advise the parties that pursuant to Section 5103(d) of Title 23 of the Pennsylvania Consolidated Statutes an acknowledgement constitutes conclusive evidence of defendant's paternity without further judicial ratification in any action to establish support. Upon defendant's execution of the written acknowledgment, the action shall proceed as in other actions for support.
(b) Genetic Testing. If the defendant appears but does not execute an acknowledgement of paternity at the conference:
(1) The court shall enter an order directing the parties to appear for genetic testing. The order must advise the defendant that his failure to appear for the testing will result in entry of an order
finding that he is the farther of the child. The order must also advise the plaintiff that her failure to appear for testing may result in sanctions, including entry of an order dismissing the
paternity action without prejudice.
(2) the conference officer shall advise and provide written notice to the parties that they may enter into a written stipulation whereby both agree to submit to genetic testing for
the purpose of resolving finally the issue of paternity. If the test results indicate a 99% of higher probability of paternity, the defendant shall be stipulated to be the biological father of the child and the case referred for a child support conference. If the test results indicate an exclusion, the action shall be dismissed. The written stipulation constitutes a waiver of the right to a hearing on the genetic testing or trial on the issue of paternity.
(3) The conference officer shall advise and provide written notice to the parties that if they do not enter into a written stipulation and the test results do not indicate an exclusion, there will be a hearing regarding genetic testing or trial before a judge without a jury on the issue of paternity in accordance with the procedures set forth in subdivision (d) of this Rule.
(c) Estoppel and Presumption of Paternity. If either party or the court raises the issue of estoppel or the issue of whether the presumption of paternity is applicable, the court
shall dispose promptly of the issue and may stay the order for genetic testing until the issue is resolved.
(d) Post Testing Procedures
(1) The results of the genetic tests shall be provided in writing to counsel for the parties or, if unrepresented, to the parties themselves.
(2) If the results of the genetic tests resolve the issue of paternity pursuant to the stipulation of the parties, a paternity order shall be entered and served on the parties.
(i) If the defendant is excluded, the action shall be dismissed;
(ii) If the defendant is stipulated to be the biological father, the action shall proceed as in other actions for support.
(3) If the results of the genetic tests do not resolve the issue of paternity pursuant to the stipulation of the parties, but the test results indicate a 99% or more probability of
paternity, the court shall issue a rule against the defendant to show cause why an order should not be entered finding him to be the farther. The rule shall advise the defendant that pursuant
to 23 Pa.C.D. § 4343 his defense is limited to a showing by clear and convincing evidence that the results of the genetic tests are not reliable. The rule shall direct that an answer to
be filed within 20 days after service of the rule on the defendant. The answer shall state the material facts which constitute the defense. Any allegation of fact which does not appear of record must be verified.
If an answer is not timely filed, the court shall enter an order finding paternity and refer the action to conference and hearing as in other actions for support. If an answer is filed raising a disputed issue of material fact relating to the reliability of the genetic testing, the case shall be listed promptly for expedited hearing before a judge. The burden of proof at the hearing is on the defendant and is limited to proof by clear and convincing evidence that the results of the genetic tests are not reliable.
(4) If the results of the genetic tests do not resolve the issue of paternity and the test results indicate less than a 99% probability of paternity, the case shall be listed promptly for expedited trial before a judge.
(5) If, after a hearing or trial, the decision is for the defendant on the issue of paternity, a final order shall be entered by the court dismissing the action as to the child, If the decision is against the defendant on the issue of paternity, an interlocutory order shall be entered by the court finding paternity. The court may enter an interim order for child support at that time and shall refer the action to conference and hearing as in other actions for support.
(e) Failure to Appear. If defendant fails to appear as ordered for a conference, hearing or trial, or for genetic tests, the court shall, upon proof of service on the defendant, enter an order establishing paternity. The court may also enter an interim order for child support at that time and shall refer the action to conference and hearing as in other actions for support.
(f) Appeal of Paternity Order. An order establishing paternity is not an appealable order. The issue of paternity may be included in an appeal from the final order of child support.
Rule 1915.3. Commencement of Action. Complaint. Order
(a) Except as provided by subdivision (c), an action shall be commenced by filing a verified complaint substantially in the form provided by Rule 1915.15(a).
(b) An order shall be attached to the complaint directing the defendant to appear at a time and place specified. The order shall be substantially in the form provided by Rule 1915.15(b).
Note: See Section 5352(c) of the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. § 5352(c), relating to costs and expenses for appearance of parties and child, and Section 5364(a), 23 Pa.C.S. § 5364(a), relating to intrastate application of the Uniform Act.
(c) A claim for custody, partial custody or visitation which is joined with an action of divorce shall be asserted in the complaint or a subsequent petition, which shall be substantially in the form provided by Rule 1915.15(a).
Note: Divorce Rule 1920.13(b) provides that claims which may be joined with an action of divorce shall be raised by the complaint or a subsequent petition.
(d) If the mother of the child is not married and the child has no legal or presumptive father, then a putative father initiating an action for custody, partial custody or visitation must file a claim of paternity pursuant to 23 Pa. C.S. §5103 and attach a copy to the complaint in
the custody action.
Note: If a putative father is uncertain of paternity, the correct procedure is to commence a civil
action for paternity pursuant to the procedures set forth at Rule 1930.6.
Rule 1930.6. Paternity Actions
(a) Scope. This rule shall govern the procedure by which a putative father may initiate a civil action to establish paternity and seek genetic testing. Such an action shall not be permitted if an order already has been entered as to the paternity, custody or support of the child, or if a
support or custody action to which the putative father is a party is pending.
(b) Venue. An action may be brought only in the county in which the defendant or the child(ren) reside.
(c) Commencement of Action. An action shall be initiated by filing a verified complaint to establish paternity and for genetic testing substantially in the form set forth in subdivision (1) below. The complaint shall have as its first page the Notice of Hearing and Order set forth in
subdivision (2) below.
(1) The complaint filed in a civil action to establish paternity shall be substantially in the following form:
(Caption)
COMPLAINT TO ESTABLISH PATERNITY AND FOR GENETIC TESTING
Plaintiff, ________, requests genetic testing to establish paternity pursuant to 23 Pa.C.S. §4343 and in support of that request states that:
1. Plaintiff is an adult individual who resides at __________
____________________________________________________________.
2. Defendant is an adult individual who resides at __________
____________________________________________________________.
3. Defendant is the natural mother and Plaintiff believes that he may be the natural father of the following child(ren):
Child's Name Date of Birth
_________________________________________________________
_______________________________________________________
4. The above-named children reside at the following address
with the following individuals:
Address Person(s) Living with Child Relationship to Child
_____________________________________________________________
_____________________________________________________________
5. Defendant was/was not married at the time the child(ren)
was/were conceived or born.
6. Defendant is/is not now married. If married, spouse's
name: _______________________________________________________
7. There is/is not a custody, support or other action involving the paternity of the above-named child(ren) now pending in any jurisdiction. Identify any such actions by
caption and docket number ___________________________________
8. There has/has not been a determination by any court as to the paternity of the child(ren) in any prior support, custody, divorce or any other action. If so, identify the
action by caption and docket number _________________________
9. Plaintiff agrees to pay all costs associated with genetic testing directly to the testing facility in
accordance with the procedures established by that facility.
Wherefore, Plaintiff requests that the court order Defendant to submit to genetic testing and to make the child(ren) available for genetic testing.
I verify that the statements made in this complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S §4904 relating to unsworn falsification to authorities.
____________________________
Petitioner
(2) The Notice of Hearing and Order required by this rule shall be substantially in the following form:
(Caption)
NOTICE OF HEARING AND ORDER
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following papers, you must appear at the hearing scheduled below. If you fail to do so, the case may proceed against you and a final order may be entered against you granting the relief requested by the plaintiff.
Plaintiff and Defendant are directed to appear on the ______ day of ______, 20__ at __m. in courtroom ______ for a hearing on Plaintiff's request for genetic testing. If you fail to appear as ordered, the court may enter an order in your absence requiring you and your child(ren) to submit to genetic tests.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
(name) ____________________________________________________
(address) _________________________________________________
(telephone number) ________________________________________
Americans with Disabilities Act of 1990
The Court of Common Pleas of ______ County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and
reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing.
(d) Service. Service of original process and proof of service in a civil action to establish paternity shall be in accordance with Rule 1930.4.
(e) Hearing and Order. At the hearing, the judge will determine whether or not the plaintiff is legally entitled to genetic testing and, if so, will issue an order directing the defendant and the child(ren) to submit to genetic testing, the cost of which shall be borne by the plaintiff.
