 | The examples and perspective in this articlemay not represent aworldwide view of the subject. You mayimprove this article, discuss the issue on thetalk page, orcreate a new article, as appropriate.(December 2010) (Learn how and when to remove this message) |
Paternity law refers to body of law underlyinglegal relationship between afather and hisbiological oradoptedchildren and deals with the rights and obligations of both the father and the child to each other as well as to others. A child's paternity may be relevant in relation to issues oflegitimacy,inheritance and rights to aputative father's title or surname, as well as the biological father's rights tochild custody in the case of separation ordivorce and obligations forchild support.
Undercommon law, a child born to amarried woman is presumed to be the child of her husband by virtue of a "presumption of paternity" orpresumption of legitimacy.[1] In consideration of a possiblenon-paternity event (which may or may not includepaternity fraud) these presumptions may be rebutted by evidence to the contrary, for example, in disputed child custody and child support cases during divorce,annulment orlegal separation.
In the case of a father not married to a child's mother, depending on the laws of the jurisdiction:
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 and maintenance, custody and guardianship.
Generally, under common law, a biological father has a legal obligation for the maintenance orsupport of his biological offspring, whether or not he is legally competent to marry the child's mother.[5]
In jurisdictions where there is nopresumption of paternity there is a process for fathers torecognise their children and become the legal father of the child.[6]
In the United States, where a child is conceived or born during wedlock, the husband is legally presumed to be the father of the child.[7] Some states have a legal process for a husband to disavow paternity, such that a biological father can be named as the parent of a child conceived or born during a marriage. In most states, any claim of non-paternity by a husband must be heard by a court.[8]
If parents litigate a divorce case without raising the issue of paternity, in most states they will be barred from disputing the husband's paternity in a later court proceeding. Depending upon state law, it may nonetheless be possible for a man claiming to be the child's biological father to commence a paternity case following the divorce.[9]
Where paternity of the child is in question, a party may ask the court to determine paternity of one or more possible fathers (called putative fathers), typically based initially upon sworn statements and then upontestimony or otherevidence.[10]
Once paternity has been legally established, if the court finds that to do so would be contrary to the best interest of the child, in most U.S. states a court may deny DNA testing or decline to remove a husband from a child's birth certificate based upon DNA testing.[11]
A successful application to the court results in an order assigning paternity to a specific man, possibly including support responsibility and/orvisitation 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.[12]
On the other hand, it could be the case where several putative fathers are fighting to establish custody. In the United States, a state may legally bar a third party from disputing the paternity of a child born within an intact marriage.[13]
Some paternity laws assign full parental responsibility to fathers even in cases of women lying about contraception, using deceit (such asoral sex followed by self-artificial insemination)[citation needed] or statutory rape by a woman (Hermesmann v. Seyer).[5]
If the context of inheritance rights, it will be the heirs of the deceased person who are attempting to dispute or establish paternity. In some states, DNA testing will be dispositive to establish paternity. In many jurisdictions, however, there are a variety of rules and time restrictions that can deny inheritance rights to biological children of a deceased father.[14][15][16]
