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Proving Paternity In Custody Cases

Proving Paternity In Custody Cases

February 22, 2016 written by Ashby Law

Having a child outside of marriage is no longer as taboo as in decades previous. Many people have children together who are committed to each other but have no desire to get married, or plan to marry after the birth of the child. In other cases, the couple may have broken up prior to the birth of the child, and in still others, the child’s father may be unknown.

Parental rights is really only a question when it comes to fathers. For obvious reasons, it is not difficult to determine who the mother of a child is. So when a child is born to unmarried parents, it is important to establish who the child’s father is legally. Without legally documented paternity, it can be difficult to receive child support or to obtain custody or visitation rights. In Washington, paternity is primarily established through one of three ways.

Legal Presumption

In many circumstances, the Washington state law will presume that a man is legally a child’s father. For example, any child born to a couple during the course of a marriage is presumed to be the child of the husband. The same rule applies when a child is born within 300 days after a couple’s divorce or annulment, or after the husband’s death.

In addition, as of 2011 state law was changed to hold that a man who lives in the same house as a child during the first two years of his or her life and openly holds the child out to be his own is legally presumed to be the father of that child. While this presumption can be rebutted by testimony from the mother or through genetic testing, there must be a court hearing and a judge must adjudicate someone else to be the father in order for this presumption to be overturned.

Paternity Acknowledgement

When an unmarried mother has her child in a hospital, she is normally presented with a form called a paternity affidavit or paternity acknowledgement. This form names the father, and must be signed and notarized by both parents before being filed with the state. Once complete, the father will have all of the legal rights and responsibilities which come with being a father.

It is important to note that both parents should only sign this acknowledgement if each is absolutely sure of the child’s parentage. This document is legally binding even if it is discovered later that the child has a different father (through a DNA test, for example). A word to the unwary: the process of getting a paternity acknowledgment reversed or stricken from the record is difficult, and an erroneous form could lead to a man paying child support for a child which is not his own.

Petition to Establish Parentage

In many cases, a legal case known as a parentage action is necessary to legally establish paternity. In these cases, a petition is filed by either the mother or the alleged father, and a hearing will be set.

At this hearing, the mother and father may agree about the paternity of the child, and an order establishing parentage can be entered relatively quickly. If either the mother or the father is uncertain about the child’s paternity, a DNA test can be ordered which will resolve all doubt.

If the mother files a parentage action against the father, and the father fails to respond to the petition or show up in court, the judge may declare him to be the father by default.

Not every action to establish parentage is granted, even with DNA evidence or genetic testing. Sometimes, presumed fathers wait too long to challenge paternity (usually more than four years after birth), and the best interests of the child will require the presumed father to continue caring for and supporting the child.

Once a child’s paternity is legally established, the court may order the father to pay child support or allow the father to have custody of or visitation with his son or daughter.

Establishing paternity can be an awkward and embarrassing experience for many people, especially if the case is heard in front of a judge. At Ashby Law, we understand your concerns, and will work with you to create a paternity acknowledgement or action which is both discrete and effective.

For help with child custody issues or any other family law matters, contact us today by calling 509-572-3700.

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