VIRTUAL LIBRARY

Paternity suits

A paternity suit is intended to determine the father of a child whose parents were not married when the child was born. Paternity is the legal determination of fatherhood that must be established before a court can order child support. Paternity also gives the child many rights, including child support, access to medical records, government benefits and more.

A woman can start the paperwork to establish paternity when she is still pregnant. If the father accepts paternity then a Declaration of Paternity can be filed with the local child support agency. If the person denies paternity, a genetic or paternity test can be ordered after the baby is born.

When there is a dispute over who the father of a child is, it may be necessary to bring a paternity suit to bring clarity and ensure the child’s interests are protected. Most states, including North Carolina, require that paternity be established by a “preponderance of the evidence,” meaning that paternity (or lack of paternity) is "more likely than not." This test is the same test used in other civil matters, such as negligence, contract law and malpractice. This is the 50.01 percent test, meaning that if evidence is even slightly greater than 50-50, it constitutes a "preponderance of evidence."

However, many states insist on a higher standard, known as the "clear and convincing evidence" test. This test is more stringent (harder to overcome) than the "preponderance" test, but not as strict as the "beyond a reasonable doubt" test, the standard in a criminal case. Under North Carolina law, oral acknowledgement of paternity may be sufficient to meet the state's "clear, cogent, and convincing" evidentiary standard for establishing a parent relationship for a child born out of wedlock. The establishment of such a relationship, however, does not legitimate the child nor give the child retroactive inheritance rights. A paternity test is a DNA test that determines whether a man could be the biological father of a child. We all inherit our DNA (the genetic material) from our biological parents. A paternity test compares a child’s DNA pattern with that of the alleged father to check for evidence of this inheritance which is the most definitive proof of a biological relationship.

Whatever the burden of proof on a person asserting or denying paternity, recent developments in DNA testing may make these distinctions irrelevant. With proper testing, most cases are decided on scientific evidence that is almost 100 percent accurate. Science has effectively removed paternity cases from usual rules of litigation and proof. Now courts and legislatures talk about 97 percent or 99 percent certainties instead of terms like "preponderance of the evidence."

The result of a paternity test is either an exclusion (the alleged father is not the biological father), or an inclusion (the alleged father is considered the biological father). Once paternity has been established a paternity suit can be filed to address issues of custody, financial support, visitations and similar rights and obligations normally handled in divorce suits.

Both parties in a paternity suit will require the assistance of a qualified attorney in order to protect their interests in these proceedings, particularly if there are disagreements about the crucial issues of child support, custody, and visitation. An attorney can represent the parties in court and also provide general information about the precedents in family law which may come into play during the proceedings. A lawyer can also be useful in assisting the parties with any subsequent issues that may arise even after the formal paternity suit has been resolved.

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