- For Attorneys
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. 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. The father may believe that he has been unjustly denied knowledge of, or access to, children he 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. 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.