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Bauer Family Law - Paternity
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Paternity
From Wikipedia, the encyclopedia

In law, Paternity is the legal acknowledgment of the parental relationship between a father and his child
usually based on biological factors, but sometimes based on social factors.

At common law, a child born to the wife during the marriage is presumed to be the husband's child, as
determined by law. This concept is the "presumption of lawful paternity", and assigns to the husband
complete rights, duties and obligations as to the child, regardless of whether he is the biological parent
or not. The presumption, however, can be rebutted by evidence to the contrary, at least before a court
issues a formal adjudication of paternity in the husband's favor, or a duty of support is established by a
decree of divorce, annulment, or legal separation. Jurisdictions differ widely on whether, when, and
under what circumstances a judgment establishing paternity or a support obligation founded on the
presumption can be set aside on the grounds that the husband was not in fact the father.

In the case of an unwed mother a man may come forward and accept the paternity of the child, the
mother may petition the court for a determination if she can identify the likely candidate(s) or paternity
can be determined by estoppal over time.

Legal Concerns
Where paternity of the child is in question, any party with an interest may ask the court to determine
paternity, of one or several potential fathers (called putative father) based initially upon sworn
statements and then upon testimony, including but not limited to:

  • Sexual relations by the mother with a man other than the putative father, with a description of the
    circumstances of the child's conception
  • Lack of access to the mother by the putative father during the same time period
  • Scientific proof (blood group, HLA marker, DNA testing, etc.) showing the likelihood of putative
    father being genetically related
  • Other admissible evidence that may tend to establish paternity such as statements against
    interest made by the putative father

Generally, hospital records and birth certificate are not sufficient to offset this presumption of lawful
paternity. A successful application to the court results in an Order of Filiation (not all states refer to it as
"Filiation"), and assigning paternity to a specific man. The biological father now must support the child
and may also generally speaking have visitation with the child. In a marriage where the biological father
is unknown or without financial means, the court may find the husband responsible for support of the
child.

In some jurisdictions the courts have also declared the male who acts as the child's father to be the
father through the equitable operation of an estoppel. Once the child has been declared to be a son or
daughter and has lived with the man for a period of time, the court may cloak the putative father with all
of the obligations of parenthood letting the biological father, "off the hook" so to speak.

A child born to the husband and wife prior to the marriage usually becomes a child of the marriage
when the marriage is performed. This was the old rule from Canon law, but at common law retroactive
legitimacy was not conferred on a child by the marriage of the parents after the child was conceived; a
matter of some import when inheritance was at issue. The different rules have largely been abrogated
in the United States by a series of judicial decrees or legislation curtailing or diminishing the disabilities
of bastardy.

Paternity laws are seen by some to have defects. For example, it is claimed that when men are lied to
about contraception (or even raped), certain paternity laws give men no protection, or that paternity fraud
is a profitable enterprise that is seldom punished by the law.
Orlando Divorce Attorneys
Bauer Family Law
5401 South Kirkman Road
Suite 310
Orlando, FL 32819

Phone: (407) 926-0255
Facsimile: (407) 926-0254
Orlando Divorce Lawyers