Paternity Litigation
Considerations for a Paternity Case
If you have a baby and you are not married to your baby’s parent, your rights are governed by the Uniform Parentage Act (UPA). If you are the baby’s biological mother, you are “by default” her legal mother, with rights of legal and physical custody, unless a judge modifies custody in a paternity case.
If you are the baby’s biological father, you do not enjoy the same presumptions. There are three categories of father: (a) acknowledged father; (b) presumed father; and (c) adjudicated (legal) father.
If you signed the acknowledgment of paternity (one of the hospital forms you signed when the baby was born), you are the baby’s “acknowledged” father. You become the baby’s legal father unless you rescind the acknowledgment within 60 days of the acknowledgment, another man files a paternity case within two years of the baby’s birth, or you file a case to set aside your acknowledgment. Your status as the baby’s legal father can be set aside only under a narrow set of exceptions, and the burden of proof is difficult to meet. After the two-year period, you are irrevocably the baby’s father. The policy behind the UPA is to provide a stable family unit for children.
If you did not sign an acknowledgment of paternity, you qualify as the “presumed” father if the mother places your name on the child’s birth certificate and/or you fail to file a denial of paternity within the same 60-day period. You also qualify as the “presumed” father if you were married to the baby’s mother 360 days or less before she was born, are married to the baby’s mother at the time of her birth, or held her out as your child. The same two-year period and restrictions apply to challenges to a “presumed” father.
If you believe that you are the baby’s father, you can claim or “allege” to be the baby’s father and challenge the “presumed” or “acknowledged” father by filing a petition for paternity within two years of the baby’s birth. However, you have no rights to access or visitation, and no child support obligations, until you have successfully challenged the “presumed” or “acknowledged” father with a DNA genetic test that meets the UPA’s requirements and shows you to be the baby’s biological father.
From the Petition to the Decree
The judge has the authority to enter and modify temporary orders regarding custody, child support, and visitation if there is a presumed or acknowledged father. Once you are judicially determined to be the baby’s father, an agreement (Consent Decree) can be filed. If you and the baby’s mother cannot agree on child support or access, you can present the issues to the judge for a ruling and a Decree of Paternity.
After the Decree
Modification of custody, child support, and visitation are subject to the same legal standards as post-decree divorce proceedings. The paternity judge loses authority over these three issues in the same manner as the divorce judge.
Attorney Fees
The UPA allows the paternity judge to award attorney fees, filing fees, genetic testing costs, travel expenses, and “other costs”, subject to the requirement of reasonableness. As a practical matter, you should be prepared to bear all of your litigation costs and attorney fees. Depending on the judge and your specific circumstances, the judge may divide the costs of the case between you and the other parent, either 50/50 or by your income percentages.