BASIC ISSUES IN DETERMINING PATERNITY

by Joel A. Abu on Aug. 14, 2017

Divorce & Family Law Family Law 

Summary: Before DNA testing can take place the Court has to first establish jurisdiction over a possible father in order to justify opening a paternity case and ordering him to submit to blood or genetic marker testing.

BASIC ISSUES IN DETERMINING PATERNITY

In initially there is a legal presumption that a husband/spouse is going to be the legitimate father of a wife’s pregnancy and in order to contest that he would have to show beyond a reasonable doubt that either (i) he had no access to the wife during the probably time of conception (ii) he is impotent or (iii) a blood test would exclude him (just having proof of adultery is insufficient to rebut the presumption). In other words in order to contest paternity the presumption may be rebutted by clear and convincing evidence a husband is  not be the father of a child.
Also (pursuant to GL 209C sec. 6) any man is presumed to be the father of a child if he is also engaged in conduct that can be construed as acknowledgment of paternity. Thus, the law provides that a person can be adjudicated father of a child either by way of a having either a biological connection or an established/ongoing relationship with the child.
The fact of having intercourse between the parties can be shown through a variety of different ways in other words any credible evidence will usually do (for example,
both parties can testify to facts sufficient to show the mother had sexual intercourse with the father at the probable time of conception).
However, a mother‘s testimony regarding her own sexual history with unidentified men at any time or identified men at any time other than probable time of conception is going to be inadmissible, irrelevant and inflammatory in nature and may not be offered. 
Based on her testimony that at the time of conception she had intercourse only with the father can be used to establish that a man is a father to her child.
The Court can also evaluate the appearance of a mother, child and father to note any resemblance as clear and convincing evidence of paternity.
**These standards are typically used in order to establish jurisdiction over a possible father of a child so to be able to open a paternity case against someone and then to order that DNA testing can take place in order to prove it beyond doubt.
Proper showing to establish jurisdiction over a possible father can be made by simply filing an affidavit by the mother or father alleging sexual intercourse occurred during the probable period of conception. 
If a person is ordered to submit to DNA testing the Court can then draw an adverse inference from the refusal.
GL 209C sec. 17 provides: the “fact any party refuses to submit to a blood test shall be admissible”... and there is case law has held that there is no constitutional impediment to the admission of a party’s refusal to submit to genetic marker testing.  A Court may also impose sanctions in response to a party’s refusal to submit to testing.

**A Court can also Order if a noncustodial parent is found to be chargeable with the support of a child that it “shall” Order support pursuant to the Mass. Child Support Guidelines and can award retroactive support back to the date of birth of the child.

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