Paternity: What it is and what it is not

Joan M Bundy

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Family Law Attorney - Chandler, AZ

Contributor Level 14

Posted over 2 years ago. Applies to Arizona, 1 helpful vote

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So what exactly is paternity?

Simply put, paternity is the determination of who the father of a child is; that is, which man donated the sperm that joined with a woman's egg to make a baby. (By the way, hardly ever is there a question about maternity, since the mother is the one who gives birth, typically at a hospital or at least in the presence of a midwife.) If mother is married at the time of birth or up to 10 months either way, paternity is presumed to reside in her husband. The hospital automatically will list him as the father on the birth certificate unless mother says to leave it blank or put someone else's name. If baby is born to unmarried parents--what sadly used to be called a "bastard" or "illegitimate" child--all bets are off as to paternity. An exception to this is voluntary acknowledgment of paternity, where a man who knows or reasonably believes himself to be the father of a certain child says in a signed writing that he is and that he accepts shared parental responsibility for the child.

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What if it is not exactly clear who the father is?

Sometimes a mother will have been intimate with more than one man around the time she conceives a child that she later gives birth to, so she may not be sure who the biological father is. Without judging the mother for her "promiscuity," the reality is that multiple sex partners greatly complicates determining paternity. To figure out whose responsibility it is to help mother care and provide for her child, genetic testing of mother, child and the various possible fathers may need to be performed. Costs can run into the hundreds or even thousands of dollars, depending on the number of men to be tested and how quickly the correct one is found. If a particular prospect is unwilling to participate in testing, you might need to obtain a court order to compel them to submit to the test (usually just a cotton swab of cheek cells inside the mouth or sometimes a blood draw). Most DNA labs' results are guaranteed to be 99.99% accurate, and the court only requires 95 percent accuracy.

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So now that I/we know who the actual bio dad is, what do we do with this information?

Well, now that you know who the proud papa is, these and any other family court issues involving children can be decided. A judge must establish (determine) paternity by written order before he or she can establish child custody, parenting time and/or child support, basically anything that concerns a child or children's welfare. Moreover, if there was any deception on the part of the mother to falsely finger someone as the father just to try to get child support money, they could be held in contempt of court and face fines and other sanctions. It is also important to note that if either parent is still a minor at the time paternity is established, that parent's parents may also be held responsible for child support for their grandchild(ren) in question, at least until mom or dad turns 18.

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Some final thoughts

Sometimes after even heroic efforts have been made to try to determine the real father, it just does not happen, either because they are unavailable, cannot be located or their identity cannot be discerned for some reason (for example, the mother was raped by a masked man, or extremely intoxicated at the time of intercourse). The saddest part about situations where paternity cannot be established for a particular child is the negative impact on that child, who is completely innocent and had no choice in being born or who their parents would be. The child not only might not get any of the child support he or she is entitled to but also may never be able to ever enjoy any kind of relationship with their biological father. Even when a stepparent, adoptive father or other relative steps up to help raise the child--which is wonderful and especially important for boys--the child may spend the rest of his or her life wondering and never knowing who their biological father was.

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Legal disclaimer

This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.

Additional Resources

State law on paternity -- Arizona Revised Statutes Sections 25-801 to -818 (especially -814)

Joan M. Bundy, Chandler family law attorney

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