Proving or (Dis)proving Being a Child's Parent
by
Robert Chang on Feb. 27, 2020
Divorce & Family Law Child Support Divorce & Family Law Divorce & Family Law Child Custody
Summary: In a divorce or parentage case, there needs to be proof that the child is yours. Some of these require active steps and others are automatic presumptions. For the latter, it's important that you take steps early on - otherwise, you may end up being responsible for supporting a child which is not your biological child.
It sounds like an episode of Maury Pouvich. Is the child yours or not? Biologically speaking, there are ways of proving it. However, the court systems solution, as with it's other solutions, can sometimes produce unfair outcomes with its "one size fits all" laws.
I recently dealt with a divorce case where my client wanted to challenge parentage; the father found out three years after his marriage that his daughter was not his biological daughter. (he had gotten divorced two years earlier)
Ordinarily, the process would be to get a blood test to disprove parentage and therefore, he would be absolved of any financial responsibility. However, in this case, the statute of limitations for a blood test had passed already (2 years).
The general rule is that parentage is presumed (the formal term is conclusively presumed, although it is rebuttable, meaning it can be challenged, which semantically does not seem to make sense) if the husband and wife are married at the time of conception. Not nine months before the conception, but at the time of conception. This means at the time your child is born. This doesn’t make much sense but my theory is that it makes it easier logistically for the court system to process cases.
Other ways that you are considered the Father is if you present yourself as the father (which requires a lot more because there is a trial and testimony has to be taken by other people), or if you were present at the hospital during the birth, and are named on the birth certificate.
Finally, even if you aren't named on the birth certificate, if you were present during the birth and were romantically involved with Mother, there's a pretty good chance that you signed a POPS Declaration (Paternity Opportunity Program) along with a plethora of other forms, which states you are the father.
Unless the father can either prove he was 1) impotent or sterile at the time of conception or 2) father requests a blood test within two years of the birth, then he is legally considered the father, whether or not any subsequent blood test proves otherwise. Furthermore, the blood test that is required needs to be done by a court expert and through a court filed motion by the father. Otherwise, he is out of luck.
It gets more complicated when a voluntary declaration of paternity is involved, but I will address that some other time. Also, if the Department of Social Services is involved, the requirements also are different. Suffice to say, this is a complicated area of the law, but the general rule itself can create some pretty unfair results.