Paternity tests in law

By 22nd October 2020Family Law
Paternity tests in law

Paternity Law refers to a body of law underlying a legal relationship between a father and his biological or adopted children and deals with the rights and obligations of both the father and the child and others. A child’s paternity may be relevant in relation to issues of legitimacyinheritance and rights to a putative father‘s title or surname, as well as the biological father’s rights to child custody in the case of separation or divorce and obligations for child support.

Under common law, a child born to a married woman is presumed to be the child of her husband by virtue of a “presumption of paternity” or presumption of legitimacy. In consideration of a possible non-paternity event (which may or may not include paternity fraud), these presumptions may be rebutted by evidence to the contrary such as disputed child custody and child support cases during divorce, annulment or legal separation.

In the case of a father not married to a child’s mother, depending on the laws of the jurisdiction:

  • a man may accept the paternity of the child in what is called an acknowledgement of paternity, voluntary acknowledgement of paternity or affidavit of parentage; or
  • the mother or legal authorities can commence an action for a determination of paternity against a putative father.

Today, when paternity is in dispute or doubt, paternity testing may be used to conclusively resolve the issue. The legal process of determining paternity normally results in the naming of a man to a child’s birth certificate as the child’s legal father. A paternity finding resolves issues of legitimacy and may be followed by court rulings that relate to child support, maintenance, custody and guardianship.

A party may also approach the court to determine the paternity of one or more possible fathers (called putative fathers), typically based initially upon sworn statements and then upon testimony or other evidence. A successful application, and paternity test, shall result in a court order assigning paternity to a specific man, possibly including support responsibility and/or visitation rights, or declaring that one or more men (possibly including the husband of the mother) are not the father of the child. A disavowal action is a legal proceeding where a putative father attempts to prove to the court that he is not the father. If successful, it relieves the former putative father of legal responsibility for the child.

Should you require assistance or information pertaining to the above, please do not hesitate to contact us.


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