Child Support 101.2: Establishing Paternity

3/19/2014

Little girlChild Support 101 is a compilation of online documents that explain the child support process and services. It is divided into three series: state functions, enforcement and family centered services.

The first series, Child Support 101: State Functions, offers information about state child support administration and the basics of child support. The second series, Child Support 101.2: Enforcement, features a collection of documents explaining the many aspects of and options for enforcement of child support. Child Support 101.3: Family Centered Services, the third of the series, is not yet available but will address various issues including child support prevention, fatherhood programs and economic stability. You may view the full contents of this project by visiting the  table of contents.

The timeline for starting a court case to establish paternity varies by state. Acting immediately after the birth of a child makes it easier to find the father. Paternity can also be established across state lines.

Federal Requirements

Under federal law, all state programs must:      

  • Permit paternity establishment at any time before the child turns 18.  
  • Not attempt to establish paternity in any case involving incest or (forcible) rape, or in any case in which legal proceedings for adoption are pending, if, in the opinion of the IV-D agency, it would not be in the best interests of the child to establish paternity. 
  • Have procedures requiring paternity tests at the request of a child or parent alleging or denying paternity.
  • Pay for state-ordered genetic tests, subject to recoupment from the challenging party if the test result is negative.
  • Order a second set of paternity tests if the first results are contested, but shall require the party contesting the test to pay for the costs of any such additional testing in advance.
  • Have procedures for a simple civil process to voluntarily acknowledge paternity available at hospitals and birth records agencies.
  • Include the father’s name on the child’s birth certificate only if both parents sign an acknowledgment of paternity, or subject to a court order.
  • Provide written and oral notice of the consequences of paternity acknowledgement to both parents.
  • Permit parties to contest acknowledgments and court orders within 60 days – after that challenges are only allowed on the basis of fraud, duress, or mistake of fact.
  • Admit genetic test results into evidence and create a rebuttable presumption of paternity if test results are positive to a certain probability (e.g., usually 95 percent or higher).
  • States may limit objections to test results.
  • Require Temporary Assistance to Needy Families (TANF) recipients to cooperate with paternity establishment proceedings in order to be eligible to receive TANF benefits.
  • Permit a father to initiate a paternity action.
  • Not provide a jury trial for paternity proceedings.

Marital Status of Parents

Married Parents

When a married woman gives birth to a child, her husband is presumed to be the father of the child. In these cases, the husband’s name will automatically be added to the birth certificate. The husband has all of the legal rights and responsibilities of fatherhood until an order or voluntary declaration "disestablishes" paternity.

Unmarried Parents

When a child is born to unmarried parents, a legal relationship between the father and child must be established before a court or administrative authority will order child support. This legal relationship is called paternity. Establishing paternity for a child born out of wedlock not only provides a legal relationship but also provides a child with access to emotional and financial support from their noncustodial parent including:

  • Important interactions and relationships with both parents.
  • Access to child support and to federal benefits such as Social Security benefits.
  • Medical insurance and health information.

Legal Establishment of Paternity

There are two ways states can establish paternity legally:

  1. Voluntary acknowledgment by the parent, or
  2. State-established legal processes, which often include genetic testing.
 
Voluntary Paternity Acknowledgment

States must establish a voluntary paternity establishment program in cooperation with hospitals, birth record agencies and other entities who wish to participate such as public health clinics, welfare and food stamp agencies, Head Start or other child care facilities or community-based organizations.

The programs must provide parents forms that include a description of the rights, responsibilities, and legal consequences of acknowledging paternity. State and federal laws require that each birthing hospital have trained staff who can explain to unmarried parents the rights and responsibilities of, and alternatives to, voluntary paternity establishment.

Most often, voluntary paternity acknowledgment is completed in the hospital within days of the child’s birth. If voluntary paternity acknowledgment is not completed in the hospital, the parents can receive these services at any time from the vital records agency and often the child support agency.

While not adopted in all states, the Uniform Parentage Act (UPA) as promulgated by the National Conference of Commissioners on Uniform State Laws has provisions for establishing paternity. The Act contains seven substantive articles including a non-judicial consent proceeding for the voluntary acknowledgment of paternity that is the equivalent of a judgment of paternity for enforcement purposes and the nature, special rules and hearings for adjudicating parentage.

Court or Administrative Establishment

The state has powers to establish paternity through court or administrative action if a father does not voluntarily admit paternity.  In judicial cases, child support staff collects information and other evidence about the alleged father and refer the case to the state child support attorney (referred to as the IV-D attorney) for legal action. The IV-D attorney represents the state child support agency. A parent may also hire a private attorney to represent him or her.  When the case goes to trial, the mother may be required to be present in court to testify about the father. If the custodial parent lives in a different state, the custodial parent may be allowed to present testimony telephonically, (this must be allowed in states that have implemented UIFSA 2001). 

In states using an administrative process, the agency can issue an administrative order establishing paternity and support. The mother signs an affidavit alleging paternity. The agency serves the father a notice. The notice informs the alleged father that the mother is claiming that he is the father and that the agency intends to establish paternity and support obligations. The notice will also include information about the alleged father’s rights and options for responding to the notice. It will also include information about where and when to get a genetic test completed. After the notice is sent, the agency files an administrative order.

Contesting Paternity

Upon the request of either parent in a contested paternity case, the court will require all parties (the mother, the child, and the alleged father) to submit to genetic tests to help the court determine paternity. Genetic testing is typically able to identify a man as the father of a child with a high degree of accuracy. Each state determines the accuracy threshold required to prove that the noncustodial parent is the biological father.  The state can order genetic testing of a potential father even over his objections. If the test results are positive, he can contest the results and request a second set of tests (but he may be required to pay for the second set). If the test results are again positive, a rebuttable (in some states, conclusive) presumption that he is the father takes effect.

Rescission

A finding of paternity by acknowledgment remains in effect, unless either signatory rescinds his or her acknowledgment within the earlier of (1) 60 days or (2) the date of an administrative or judicial proceeding to establish a support order. Federal law requires states to accept rescission of a paternity acknowledgment made within that period.

States laws/procedures on rescission vary. For example, some states use an administrative procedure for rescission; others require a formal judicial action. Generally, the state agency must send notice to the non-rescinding party. The rescinding party may have to file a petition to determine parentage and to have genetic testing ordered. In addition, if the father’s name already appears on the child’s birth certificate because of the acknowledgment, a court order permitting the rescission will permit the vital statistics agency to change the birth certificate and remove the man's name from birth records.

Interstate Recognition

States are required to give full faith and credit to a paternity affidavit signed in another state according to its procedures. Any adjudication of paternity issued by a court or an administrative agency of competent jurisdiction is also required to be filed with the state birth records agency. As a condition of receiving federal funds, states must also bar judicial or administrative proceedings to ratify an unchallenged acknowledgment of paternity. Once signed, the acknowledgments must be filed with the state birth records agency.

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*PLEASE NOTE: The National Conference of State Legislatures is an organization serving state legislators and their staff. We cannot offer legal advice or assistance with individual cases, but we do try to answer questions on general topics.

About This NCSL Project

NCSL staff in D.C. and Denver can provide comprehensive, thorough, and timely information on critical child support policy issues. We provide services to legislators and staff working to improve state policies affecting children and their families. NCSL's online clearinghouse for state legislators includes resources on child support policy, financing, laws, research and promising practices. Technical assistance visits to states are available to any state legislature that would like training or assistance related to this topic.

The Denver-based child support project staff focuses on state policy, tracking legislation and providing research and policy analysis, consultation, and technical assistance specifically geared to the legislative audience. Denver staff can be reached at (303) 364-7700 or cyf-info@ncsl.org.

NCSL staff in Washington, D.C. track and analyze federal legislation and policy and represent state legislatures on child support issues before Congress and the Administration. Staff in D.C. can be reached at (202) 624-5400 or cyf-info@ncsl.org.

The child support project and D.C. human services staff receive guidance and support from NCSL's Standing Committee on Health & Human Services.

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