Paternity (law)
Encyclopedia
In law, paternity is the legal acknowledgment of the parental relationship between a man and a child usually based on several factors.
At common law
, a child born to the wife during a marriage is the husband's child under the "presumption of legitimacy
", and the husband is assigned complete rights, duties and obligations as to the child. The presumption, however, can be rebutted by evidence to the contrary, at least prior to a formal court ruling involving the putative paternity (often this is a decree of divorce
, annulment
, or legal separation
). Jurisdictions differ widely on when a judgment establishing paternity or a support obligation based on the presumption can be set aside on the grounds that the husband was not in fact the father.
In the case of an unwed mother, a man may come forward and accept the paternity of the child, the mother may petition the court for a determination, or paternity can be determined by estoppel
over time.
or other evidence
.
A successful application to the court results in an order assigning paternity to a specific man, possibly including support responsibility and/or visitation
rights.
Once a father has established paternity and, if he wishes to be part of the child's upbringing, he can effectively establish his parental rights with his child by filing a parenting plan
. In the United States, law requires parents to file a parenting plan
with a district court which outlines how the biological parents will share parental responsibilities on matters such as legal custody, physical custody (parenting time or visitation), and medical insurance.
Some paternity laws assign full parental responsibility to fathers even in cases of women lying about contraception, using deceit (such as oral sex
followed by self artificial insemination
(State of Louisiana v. Frisard
) or statutory rape by a woman (Hermesmann v. Seyer
).
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 most states, however, there are a variety of rules and time restrictions that can deny inheritance rights to biological children of a deceased father.
At common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, a child born to the wife during a marriage is the husband's child under the "presumption of legitimacy
Presumption of legitimacy
The presumption of legitimacy is a common law rule of evidence that states that a child born within the subsistence of a marriage is deemed to be the child of the husband.-Early history:...
", and the husband is assigned complete rights, duties and obligations as to the child. The presumption, however, can be rebutted by evidence to the contrary, at least prior to a formal court ruling involving the putative paternity (often this is a decree of divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
, annulment
Annulment
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place...
, or legal separation
Legal separation
Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally binding consent decree...
). Jurisdictions differ widely on when a judgment establishing paternity or a support obligation based on the presumption can be set aside on the grounds that the husband was not in fact the father.
In the case of an unwed mother, a man may come forward and accept the paternity of the child, the mother may petition the court for a determination, or paternity can be determined by estoppel
Estoppel
Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative...
over time.
Legal concerns
Where paternity of the child is in question, a party may ask the court to determine paternity of one or several possible fathers (called putative fathers) based initially upon sworn statements and then upon testimonyTestimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
or other evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
.
A successful application to the court results in an order assigning paternity to a specific man, possibly including support responsibility and/or visitation
Visitation
Visitation may refer to:In history:* Heraldic visitation, tours of inspection to establish the right of a person to bear arms, and are used today in genealogical research.In law:...
rights.
Once a father has established paternity and, if he wishes to be part of the child's upbringing, he can effectively establish his parental rights with his child by filing a parenting plan
Parenting plan
A Parenting Plan or Custody Agreement is required by the district court along with divorce paperwork when parents divorce or separate. A Parenting Plan allows parents to avoid future conflicts arising from a lack of guidelines in dealing with responsibilities relating to the children...
. In the United States, law requires parents to file a parenting plan
Parenting plan
A Parenting Plan or Custody Agreement is required by the district court along with divorce paperwork when parents divorce or separate. A Parenting Plan allows parents to avoid future conflicts arising from a lack of guidelines in dealing with responsibilities relating to the children...
with a district court which outlines how the biological parents will share parental responsibilities on matters such as legal custody, physical custody (parenting time or visitation), and medical insurance.
Some paternity laws assign full parental responsibility to fathers even in cases of women lying about contraception, using deceit (such as oral sex
Oral sex
Oral sex is sexual activity involving the stimulation of the genitalia of a sex partner by the use of the mouth, tongue, teeth or throat. Cunnilingus refers to oral sex performed on females while fellatio refer to oral sex performed on males. Anilingus refers to oral stimulation of a person's anus...
followed by self artificial insemination
Artificial insemination
Artificial insemination, or AI, is the process by which sperm is placed into the reproductive tract of a female for the purpose of impregnating the female by using means other than sexual intercourse or natural insemination...
(State of Louisiana v. Frisard
State of Louisiana v. Frisard
State of Louisiana v. Frisard, 694 So. 2d 1032 , established a legal precedent in Louisiana stating that a man is strictly liable for his sperm if he engages in consensual sexual contact...
) or statutory rape by a woman (Hermesmann v. Seyer
Hermesmann v. Seyer
Hermesmann v. Seyer was a precedent-setting Kansas, United States case in which Colleen Hermesmann successfully argued that a woman is entitled to sue the father of her child for child support even if conception occurred as a result of a criminal act, like statutory rape, committed by the woman...
).
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 most states, however, there are a variety of rules and time restrictions that can deny inheritance rights to biological children of a deceased father.
See also
- Misattributed paternityMisattributed paternityMisattributed paternity is the situation when a child’s putative father is not the child’s biological father. Misattributed paternity is not a rare phenomenon, its true incidence is not known, but medical students are routinely taught that the figure is in the 10 - 30% range...
- Child supportChild supportIn family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
- Bradley AmendmentBradley AmendmentIn United States law, the Bradley Amendment requires state courts to prohibit retroactive reduction of child support obligations...
particularly the section on controversy
- Bradley Amendment
- FiliationFiliationFiliation is the legal term that refers to the recognized legal status of the relationship between family members, or more specifically the legal relationship between parent and child. As described by the Government of Quebec:...
- MaternityMaternityMaternity or motherhood is the social and legal acknowledgment of the parental relationship between a mother and her child.It is specially related with the protection of the baby and the mother within and after the childbirth.-See also:...
- Parental leaveParental leaveParental leave is an employee benefit that provides paid or unpaid time off work to care for a child or make arrangements for the child's welfare. Often, the term parental leave includes maternity, paternity, and adoption leave...
- Paternity test
- Parenting planParenting planA Parenting Plan or Custody Agreement is required by the district court along with divorce paperwork when parents divorce or separate. A Parenting Plan allows parents to avoid future conflicts arising from a lack of guidelines in dealing with responsibilities relating to the children...
- Paternity fraudPaternity fraudPaternity fraud refers to a paternal discrepancy or a non-paternity event, in which a mother names a man to be the biological father of a child, particularly for self-interest, when she knows or suspects that he is not the biological father. The term entered into common use in the late 1990s. It...
- MauryMaury (TV series)Maury is a syndicated American tabloid talk show hosted by Maury Povich.When the series first aired in 1991, the show was called The Maury Povich Show and was produced by MoPo Productions in association with Paramount Domestic Television...