The recent advances and popularity of DNA and genetic testing have allowed conclusive establishment and disestablishment of paternity. However, this has created new issues. For years, any child born to a married couple has been presumed to be a child of the marriage, and the husband the legal father. In California, the marital presumption of paternity has been codified. This law simply finds that a child born to a woman who is cohabitating with her husband is conclusively presumed to be a child of the marriage.
The states’ differ in the requirements to challenge paternity. In Illinois, only the child, the mother or the presumed father can challenge paternity. In Delaware, anyone can bring a challenge at any time. States also have different time limits for setting aside a legally established paternity. Alaska requires it to be brought within 3 years of the child’s birth, or within 3 years after the challenger knew or should have known of the child’s paternity. Washington requires that a challenge be brought “within a reasonable time.” Maryland requires anyone challenging the voluntary acknowledgments of paternity to be initiated in writing within 60 days of signing. Clearly, the attorney representing you must be aware of the statute of limitations for bringing forward the motion to set aside paternity.
Historically, fathers of illegitimate children had no legal duty to support them. But increases in the number of children born out of wedlock and social and financial consequences of this policy resulted in the establishment of financial duties owed by unmarried fathers to their children. But courts are all over the place in their rulings.
Courts are more likely also to allow a set aside of paternity if the parents were never married. For example, the Ohio Supreme Court granted the set aside of a paternity in a case where the man never responded to court documents establishing paternity and child support concluding in a default judgment. This man, however, obtained a DNA test that excluded him as the father.
This is in contrast to a case in Massachusetts in which the court ruled that a man was required to continue to pay child support for a child that is not biologically his but had supported this child for most of her seven years of life. Moreover, he held this child out to be his, despite suspicions and rumors that he may not be her biological father. The court found that there is a compelling public interest in the finality of paternity judgments, especially where there is a substantial parent-child relationship.
Many paternity and support judgments all over the nation are entered by default. It is not uncommon that many fathers are not aware that they are fathers until their wages have been garnished by the state. To receive federal funds on child support orders, states must name the father of the children on government assistance (welfare, medi-cal). Since there is no requirement for DNA testing for paternity, there is no state requirement in California and most states. Indeed, father’s rights advocates argue that there is an incentive for states to bypass costly genetic testing.
Most states once paternity has been established and a monetary child support is ordered by the court have agreements to enforce such court orders. The Department of Justice, Homeland Security, Franchise Tax Board are just some agencies that will be cognizant of this order. In fact, a client is now having his passport renewal denied due to arrears (back due child support). Employers, of course will be aware due to the wage garnishment order that they must comply with. Failure to comply with the support orders can detrimentally affect your driver’s license, your credit report and liens on all your real estate properties.
The point here should be clear. If you become aware of a default judgment establishing you as the father of a child—do not ignore it. You must immediately consult an attorney since it is a time sensitive matter and an uphill legal battle to challenge a court order which has already established you as the father. If you signed a voluntary declaration of paternity, usually at the hospital when the child was born, it can be set aside up to 2 years in California, after it was signed. But it is subject to a court finding that you signed the document due to fraud, duress of material mistake. All these motions are available to you and many more but it must be done in a court hearing with an effective attorney representing to the court why it is to the best interest of the child to overturn a prior legal order already establishing paternity.