Operations and Development Manager at DNA Legal
In most US states, when a child is born during a marriage or a man displays his commitment to being the father of the child he lives with, he is presumed to be the father.
In some instances, there is a grey area where paternity just isn’t clear.
It is within these cases that paternity must be tested and confirmed before any legal decision, such as custody, visitation, or child support, can be ordered. In this article, we look at the space where paternity intersects with divorce law.
What is the easiest way to establish paternity?
When it comes to legal DNA testing in divorce cases, the path of least resistance is voluntary. There’s a legal form known as a ‘Voluntary Declaration of Paternity’, where the father signs in acknowledgement that he is the father.
This document is accepted as a judgement of paternity and gives the father related responsibilities and rights.
In divorce cases, this form is quite common signed, but, what happens when the father challenges his own paternity? Most states offer a legal process for the father to disavow paternity so that the biological father can step forward and meet their responsibilities, however, this must be done in a court of law.
What happens when a mother or father wishes to determine paternity?
Court action will dictate that a DNA test must take place, using a blood or saliva test to do so.
It may be the case that the father questions his own paternity and so refuses the right to sign the voluntary declaration of paternity, but it may also be the case that the mother has requested the father take a legal DNA test in order to make sure the right man will pay child support.
It must be noted that if neither parent raises the issue of paternity at the start of a divorce proceeding, they will be barred from later disputing that paternity in a future court proceeding.
However, once the divorce has concluded, a man claiming to be the biological father can make a legal claim for paternity.
Once paternity is established, what happens?
If tests come back and the putative (alleged) father is confirmed to be the biological father of the child, he has the legal responsibility of financially supporting the child after the divorce is finalised.
The father must pay child support in addition to child care costs. The court will also award shared custody or visitation right based on the events that have transpired during the court case.
What happens if paternity is not established?
When the paternity test comes back negative, it is the responsibility of the mother to find the real father and establish paternity with them.
The man who tested negative is not liable to pay child support but can do so voluntarily. Until paternity has been established for definite, a court cannot make any demands in relation to child support, custody, or other responsibilities.
Does the father need to have a biological relationship with the child?
Yes and no. If the man has treated the child as if it were his own (whether he believed so or not) some states may assert that he should be awarded paternity.
If the man does not want paternity and he is not the biological father, he is not under the obligation to financially support the child.
Can a DNA test be done without the father’s knowledge or consent?
This type of test is illegal, you cannot test somebody’s DNA without their written consent. In some instances, this happens anyway, however, the results are ‘non-legal’ and may get the person performing the test into trouble.
The results are non-admissible in a court of law and we advise people not to go down this route.
Can the father refuse to take a DNA test in a divorce case?
Yes, he can, however, there are legal consequences for taking this action.
A judge can make the father submit a genetic sample to a court-approved testing centre or lab, at which point the father will be in contempt of court if he refuses.
The legal consequences are typically fines, however, there are criminal charges that could be applied if relevant. In some cases, the court may not deem there to be enough information available to warrant a paternity test, however, this is the exception rather than the norm.
How accurate is legal DNA testing in divorce cases?
There is a 99.99% certainty of a genetic match to confirm the biological parenthood of a father and child.
The tiny room for error comes from contamination, which is highly unlikely as tests must go through a chain-of-custody.
The testees must prove their identity, sign all of the chain-of-custody documents, and this whole time there are witnesses who ensure nothing out of the ordinary happens in order to maintain the scientific and legal integrity of the test.
The results of the test can be contested if:
- There is a suspicion of fraud or tampering
- The possible father can prove sterility
Why should you pursue legal DNA testing in divorce cases?
For the putative father, the consideration is often financial, to make sure that you are financially supporting your own child rather than someone else’s.
For the mother, it’s to ensure the child knows who their father is and that their father has helped them financially. It’s also for the benefit of the child, who will no doubt be better provided for if he or she has financial support coming in from both parents.
There are personal and emotional considerations to a legal DNA test for the child too, who may benefit from exposure to both parents and additional love and care.