What Is “Paternity” And How Is It Taken Up In Family Law Court?

Paternity is defined in family law as the legal establishment of the identity of a child’s father – often via DNA testing. Establishment of paternity is a key factor in cases involving child support, custody, adoption, and inheritance. The establishment of paternity is a pre-requisite for any orders regarding child custody/visitation and support in a case where the child’s parents are unmarried.

An action to establish paternity is a civil proceeding and most states require that paternity be established by a “preponderance of the evidence” which means that it must be more likely than not that the man is the child’s father. However, due to DNA testing which is highly accurate, the standards of proof have less real world impact. In other words, a DNA test will determine paternity with far greater accuracy than required by preponderance or even a clear and convincing standard.

DNA testing is used to establish paternity when either the mother or father contests paternity. For instance, the alleged father may demand proof of paternity before he will make child support payments. Or a mother may allege that a man is not her child’s father and require a DNA test to prove he should be given custody and visitation of the child. Most often, the parents do not contest paternity and can thus agree to its establishment voluntarily.

One may also establish paternity via circumstantial evidence. Thus, in instances where a man takes care of a child and holds it out to be his child and when a married man’s wife has a baby during their marriage, paternity is presumed.

After paternity is established, the father has rights to seek custody and visitation of the child. Further, depending on the parties’ financial circumstances, the father may be ordered to pay child support to the mother as she is likely the primary custodian in cases where paternity is at issue.