Am I the father?
This is the question family lawyers are hearing more frequently than many realize. Establishing the parent child relationship between a man and a child is otherwise known as establishing paternity. Paternity is presumed in the husband whenever a child is born to a marriage. When a child’s parents are not married, paternity is not always clear. In general, the procedures for establishing paternity in Virginia are set forth at Virginia Code 20-49.1 et seq.
Proving maternity is usually not the issue.
The parent and child relationship between a child and a woman may be established by proof of her having given birth to the child or by other means if such proof is not available.
How to establish paternity.
Paternity may be established by:
- Scientifically reliable genetic tests, including blood tests, which affirm at least a ninety-eight percent probability of paternity.
- A voluntary written statement of the father and mother made under oath acknowledging paternity and confirming that prior to signing the acknowledgment, the parties were provided with a written and oral description of the rights and responsibilities of acknowledging paternity and the consequences arising from a signed acknowledgment, including the right to rescind.
- This acknowledgement may be rescinded by either party within sixty days from the date on which it was signed unless an administrative or judicial order relating to the child in an action to which the party seeking rescission was a party is entered prior to the rescission.
- A written statement acknowledging paternity is equivalent to a judgment establishing paternity and is binding and conclusive unless, in a subsequent judicial proceeding, the person challenging the statement establishes that the statement resulted from fraud, duress or a material mistake of fact.
- In the absence of such acknowledgment or if the probability of paternity is less than ninety-eight percent, paternity may be established by other evidence. Proof of paternity must be clear and convincing. Evidence that may be considered includes:
- Evidence of open cohabitation or sexual intercourse between the known parent and the alleged parent at the probable time of conception.
- Medical or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts. If a person has been identified by the mother as the putative father of the child, the court may, and upon request of a party shall, require the child, the known parent, and the alleged parent to submit to appropriate tests;
- The results of scientifically reliable genetic tests, including blood tests, if available, weighted with all the evidence;
- Evidence of the alleged parent consenting to or acknowledging, by a general course of conduct, the common use of such parent’s surname by the child;
- Evidence of the alleged parent claiming the child as his child on any statement, tax return or other document filed by him with any state, local or federal government or any agency thereof;
- true copy of an acknowledgment pursuant to § 20-49.5; and
- An admission by a male between the ages of fourteen and eighteen pursuant to § 20-49.6.
Filing a petition to establish paternity
A petition to establish paternity is usually filed in a Juvenile and Domestic Relations District Court but the Circuit Courts have concurrent jurisdiction in paternity matters. Here is a link to an online fillable petition for genetic testing.
A father may have an order to pay child support or establishing paternity set aside if paternity is disproven by acceptable genetic testing. However, if a court cannot relieve a father from a paternity determination if the named father (i) acknowledged paternity knowing he was not the father, (ii) adopted the child, or (iii) knew that the child was conceived through artificial insemination.
If you have further questions about paternity testing, please contact the Moore Law Firm family lawyers for a consultation to discuss your rights and options.