What Happens if a Man Has Been Paying Child Support and is Found to Not be the Father?
If the court finds by clear and convincing evidence that the genetic tests demonstrate that the established father is not the biological father of the child, the court shall vacate the determination of paternity and terminate the obligation of that party to pay ongoing child support. An order vacating the determination of paternity operates prospectively only and does not alter the obligation to pay child support arrearages or, unless otherwise ordered by the court, any other amount previously ordered to be paid pursuant to section 25-809.
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 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.A man is presumed to be the father if he has been married to the mother for a certain time before the child is born. That presumption may be rebutted by clear and convincing standards of evidence, such as a DNA test. A man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child having a presumed father. If a biological father is determined to be a man not married to the mother, that man may be ordered to have visitation rights, as well as other obligations.
To establish paternity through the court, one of the parents must file documents necessary to start a court case. This can be done during the mother’s pregnancy or any time before the child reaches the age of eighteen. Either the mother or the putative father must file a written "petition" with the Clerk of the Superior Court, stating the names and social security numbers of each person involved and indicating who the father is claimed to be. The person who files the petition must have it served on the other party, who then has an opportunity to respond. Usually, the court then orders that genetic testing be done. If the results of the test indicate a likelihood of paternity of 95% or more, the man is presumed to be the father. Most often the case is then resolved, but it is possible that a court trial may be necessary if the presumed father continues to dispute paternity. Persons considering filing a court action may wish to consult an attorney to assist them.
When a court case is concluded (and the person claimed to be the father is proven by genetic testing or otherwise to be the biological father), the court will issue an order establishing legal paternity. In some circumstances, the court also may order an amount to be paid for future child support, for any past child support that is due, an amount to be paid for the costs of the child’s birth and medical insurance coverage for the child. A parenting time (formerly called visitation) schedule may also be established by the court order.
Courts are divided on the issue of paternity fraud. It will be a matter of subjective determination for the court based on all the facts involved. A paternity action for the purpose of declaring the nonexistence of the presumed father and child relationship may be brought within a reasonable time after obtaining knowledge of relevant facts.
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