If a mother refuses to have a paternity test, what happens next?

Full Question:

If a mother refuses to have a paternity test, what happens next? Can she still come after him for child support?
04/21/2009   |   Category: Paternity   |   State: Arizona   |   #16085

Answer:

In most states, a paternity action takes the form of a civil lawsuit. 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. An action for paternity may be filed by the child. In many states, after a child reaches the "age of majority," he has another one to five years to seek the establishment of paternity.

A man is rebuttably presumed to be the father of a child born to a woman if he and the woman were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment or dissolution or after entry of a judgment of separation. However, this may be rebutted by clear and convincing evidence, such as genetic testing, in a paternity action by a man claiming to be the biological father.

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 all be tested at a court-designated facility. 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. If a person refuses to kae a paternity test, the court may hold the person in contempt, or a default (automatic) judgment may be entered against the person. If the mother refuses a test, the court may automatically order that paternity is not restablished, and therefore, no child support is due from the claimed father.

If a person is not the father, then he cannot be required to support the child. If he was married to the mother when the child was conceived, he signed a birth certificate, or if he signed an "acknowledgment of paternity" form, then he is presumed to be the father. Otherwise, child services, the state, or the mother must establish that he is the father.

The following are AZ statutes:

25-807. Precedence of maternity and paternity proceedings; delay for blood
or tissue tests; court order; evidentiary use; alternative tests

A. Proceedings to establish maternity and paternity have precedence over
other civil proceedings. The case shall be set for trial within sixty days
from the filing of an answer by the respondent.

B. A delay in determining paternity in an action commenced before the
birth of the child shall be granted until after the birth of the child for
purposes of paternity tests if any party to the proceedings requests.

C. The court, on its own motion or on motion of any party to the
proceedings, shall order the mother, her child or children and the alleged
father to submit to the drawing of blood samples or the taking of
deoxyribonucleic acid probe samples, or both, and shall direct that
inherited characteristics, including blood and tissue type, be determined
by appropriate testing procedures. An expert duly qualified as an examiner
of genetic markers shall be agreed on by the parties or appointed by the
court to analyze and interpret the results and report to the court.

D. If the results of the blood tests indicate that the likelihood of the
alleged father's paternity is ninety-five per cent or greater, the alleged
father is presumed to be the parent of the child and the party opposing the
establishment of the alleged father's paternity shall establish by clear
and convincing evidence that the alleged father is not the father of the
child.

E. The examiner's report shall be admitted at trial unless a timely
written challenge to the examiner's report is filed with the court within
twenty-one days of the initial trial date. If the results of the examiner's
report have been challenged and on the reasonable request of a party, the
court shall order an additional test to be made by the same laboratory or
an independent laboratory at the expense of the party requesting additional
testing.

F. If a timely written challenge is not filed pursuant to subsection E,
the examiner's report is admissible in evidence without the need for
foundation testimony or other proof of authenticity or accuracy.

G. The court, on application of either party, shall determine the
proportion and time in which the initial test costs shall be paid.

H. On motion of a party to the proceedings, the court may order that
experts perform alternative or additional tests including medical,
scientific and genetic tests.

25-816. Title IV-D child support; paternity establishment; genetic testing

A. On receipt of a sworn statement by the mother or the alleged father
alleging paternity and setting forth the facts establishing a reasonable
possibility of the requisite sexual contact between the parties, the
department of economic security or its agent may order the mother, her
child or children and the alleged father to submit to the drawing of blood
or tissue samples for genetic testing of a type generally acknowledged as
reliable by accreditation bodies. If the mother cannot be located the
department or its agent may order the caretaker of the child or children to
present the child or children for genetic testing. The order shall be
served by first class mail or delivered at least ten business days before
the genetic testing. The department or its agent shall pay the costs of the
test subject to repayment from the mother or the alleged father if
paternity is established. An order of genetic testing issued by the
department or its agent has the same force and effect as a superior court
order.

B. If the results of the genetic testing indicate that the likelihood of
the alleged father's paternity is ninety-five per cent or greater, the
alleged father is presumed to be the parent of the child and the party
opposing the establishment of the alleged father's paternity shall
establish by clear and convincing evidence that he is not the father of the
child.

C. A person who is tested pursuant to this section may contest the test
results in writing to the department or its agent within thirty days after
the department or its agent mails the results to that person. If the
original test results are contested in a timely manner, on request and
advance payment by the requesting party, the department or its agent shall
order a second genetic test pursuant to subsection A.

25-813. Default order of paternity

In an action to establish paternity, the court shall enter an order of
paternity if either:

1. The service of summons is complete and the respondent fails to appear
or otherwise answer.

2. An order for genetic or blood testing has been entered and the
respondent fails to appear without cause for an appointment to take a blood
or genetic test or fails to take a blood or genetic test.

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