Mary Carollo: Paternity

As a Child Custody Lawyer, I’ve often asked about family law and paternity questions. The term “Paternity” refers to the legal establishment of who is the father of a child. While the identity of a child’s biological mother is usually by nature easy to establish, the father’s identity may in some cases be uncertain. Paternity issues often arise in cases involving child support, but they can also be important in relation to adoption, inheritance, custody and visitation, health care, and other issues.

Paternity Actions in Utah Courts

An action to establish paternity is a civil proceeding. Most states require that paternity be established by a “preponderance of the evidence,” which means that it must be more likely than not that the man is the father of the child. Other states, like New York, apply a higher standard, requiring clear and convincing evidence of paternity. In reality, however, the different standards have little practical impact in light of recent developments in scientific testing.

DNA Testing and Utah Paternity

The advent of DNA profiling was a major breakthrough in paternity testing. In a DNA test, the scientist examines the genetic material that the child inherited from its biological parents. First the child’s genetic characteristics are compared to those of the mother. The characteristics in the child that are not found in the mother are determined to have come from the father. If the man being tested does not have these genetic characteristics in his DNA, he can be scientifically excluded. If the man does have such characteristics, the probability of his paternity is calculated. DNA testing can establish a father’s paternity with over ninety-nine percent accuracy. DNA testing can be done even before the child is born.

Establishing Paternity in Utah

DNA testing is generally done only when one party contests the paternity allegations. For instance, the putative (or “alleged”) father in a paternity action that is the basis for child support collection may require proof that he is the child’s father before he consents to payment of support. In other cases, the mother may contest the putative father’s paternity, such as when a man attempts to gain custody of or visitation with a child he believes to be his. In many other cases, there is no argument between the parents, and paternity can be established voluntarily. Paternity may also be established by circumstantial evidence, such as when a man takes the child into his home and holds the child out to the public as his own. A married man is presumed to be the father of a baby born to his wife during or shortly after their marriage.

Once paternity is established, the father may be ordered to pay child support for his child. A father who is not married to the child’s mother generally will not be awarded custody of the child if the mother is providing reasonable care, but he may receive preference over third parties, such as grandparents or prospective adoptive parents.

Paternity issues, like most family law issues, can have far-reaching implications, both financially and emotionally. When faced with these issues, it is important to seek the counsel of an objective, experienced lawyer.