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Challenging Paternity with DNA Tests

posted by DNA Identifiers @ 12:12 PM
Thursday, July 26, 2012

Paternity for many is a tough issue, both emotionally and legally. Paternity is assigned to men and boys in a few ways. The first is by marriage. Men are automatically assumed to be the father if they are married to the mother or in many states if they attempted to marry the mother and did not do so in a legal manner. The second is by voluntary acknowledgment. This is a typically a form that is signed in the hospital prior to the release of the mother and child. The third is by court judgment.

Most if not all states have a law that looks something like this:

(1) A man is presumed to be the father of a child if:

(a) He and the mother of the child are married to each other and the child is born during the marriage;

(b) He and the mother of the child were married to each other and the child is born within three hundred days after the marriage is terminated by death, annulment, dissolution of marriage, legal separation, or declaration of invalidity;

(c) Before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is, or could be, declared invalid and the child is born during the invalid marriage or within three hundred days after its termination by death, annulment, dissolution of marriage, legal separation, or declaration of invalidity; or

(d) After the birth of the child, he and the mother of the child have married each other in apparent compliance with law, whether or not the marriage is, or could be declared invalid, and he voluntarily asserted his paternity of the child, and:

(i) The assertion is in a record filed with the state registrar of vital statistics;

(ii) Agreed to be and is named as the child’s father on the child’s birth certificate; or

(iii) Promised in a record to support the child as his own.

(RCW 26.26.116 Presumption of paternity in context of marriage. on leg.wa.gov)

While this law might seem reasonable to many it does not take into account that it is estimated that 40% of wives will have an affair at some point in their marriage (www.caughthercheating.com) What if that child is not the husbands?

The second way is for the father and mother to sign Voluntary Acknowledgment of Paternity form at the hospital when you have your baby. The hospital staff will give you this form and help you complete it. When you and the child’s father sign the Voluntary Acknowledgment of Paternity form, the father’s name will be placed on the birth certificate.

If you and the baby’s father are unable to sign the Voluntary Acknowledgment of Paternity form at the hospital, you may complete it at home. Your signature must be witnessed by someone over 18 years old, and by a person not named on the voluntary acknowledgment.

You don’t have to be the biological father to sign this form there is no proof required you are stating you are the father and will be responsible the moment you sign this from. Most states but not all have laws that allow you to challenge paternity that is assigned based on the Voluntary Acknowledgment of Paternity. They typically have a set time period with in which you can contest your paternity.

The third way is to have paternity assigned to you by a court. This can happen if the alleged father does not responded to a woman’s claim for paternity or if the Judge or Jury feels that it is in the best interest of the child. For example a section of Missouri’s bill requires courts to balance the best interests of the child and the hardships of the man who is contesting paternity regardless of a DNA test proving that he is not the father.

“James McClendon knows he’s not the biological father of his ex-girlfriend’s 16-year-old son. He’s got a DNA test to prove it. But his wages are trimmed each month to pay thousands in child support debt. McClendon, who lives in St. Louis, has been fighting a 10-year legal battle to overturn a paternity ruling that says he’s the child’s father. Between legal bills, supporting his three biological children and several failed jobs, he’s built up $25,000 in child support debt.” (States move to allow DNA paternity challenges, By LEE LOGAN The Associated Press www.kansascity.com)

Stories like this are not all that uncommon unfortunately and have been a leading reason why in over 30 states laws are being or have been enacted to allow men to challenge paternity with a DNA test. A major force lobbying for changes to paternity laws is Carnell Smith, an engineer in Atlanta. Smith successfully lobbied for a Georgia law that allows men to challenge paternity at any time. Smith who calls himself a victim of “paternity fraud,” used this same law to erase his own paternity ruling in 2003. Carnell Smith has formed a national organization lobbing for similar laws in other states.

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