Disestablishing Parentage (3 of 3)

photo courtesy Aneta Blaszczyk and sxu

Because genetic testing has become accurate and reliable, states and parents are struggling with the difficult question of what to do if parentage was established by acknowledgement or by “default” because the child was born during a marriage.  The conflict mostly arises as a matter of divorce or separation and an order for financial child support.  In the matter of attempting to collect previously made child support payments ordered by the court or Child Support Enforcement office, the falsely identified father will find it difficult to collect reimbursement for such payments. 

From a civil litigation perspective, failing to exercise legal rights earlier to genetically determine parentage of the child(ren) at birth is generally insufficient argument of itself to collect monies previously paid as child support.  However, fraud or other material fact may give greater cause for the court to make such an award.  But remember, if the mother was dependent upon receiving child support payments to care for the child(ren), it is unlikely she will have the resources to pay even if so ordered.  While disestablishing parentage is primarily a legal determination to which some states have enacted legislation permitting same, the more important factor to consider in the discovery child(ren) are not the offspring of the “father” is the reluctance of the court to break the bond between the parent and the child(ren). 

Some states have no laws and few recognized practices to assist in reversing a finding of parentage in the absence of fraud, duress or a material mistake of fact.  Ignorance of actual parentage may be insufficient to disestablish parentage, particularly if the person held himself out as the father, performing the necessary roles and duties of a responsible parent.

NOTE: The time to make certain that the legal father IS the biological father as well is before the acknowledgement is signed or shortly after the child’s birth. Once a child bonds with a parent and believes him to be his father, it is cruel to subject that child to DNA tests.

Genetics Is Best Test

photo courtesy Sam Hatch and sxu

Realistically, some mothers have had more than one partner and really cannot be certain that a particular man is the actual biological father. Genetic tests are the best was to ensure this is so. If the man is not the biological father and wants to adopt anyway, there are processes for that designed to provide security for the child should the parties have a later falling out. While a few women may falsely name a man as father without having had relations with him, the typical case is that she may not be certain and names the most likely father in her own mind to protect herself from embarrassment.  By showing up in court and taking the DNA test any such father could be excluded. However, if a person does not assert his rights to a test, courts will not give back support paid in the meantime.