FAMILY LAW ARTICLES
Who’s the Daddy? Part 1.
The goal of some men is to become the “legal” or “adjudicated” Father of a child, sometimes when that child is not their own biological baby. The goal of other men is to avoid being named the legal father of a child not necessarily born of their loins… or even if it is.
This area of the law has evolved significantly over the past fifteen years, and has proven to be highly significant in the lives of several of our clients.
At law, determining the biological father of a child is merely one possible step in deciding who the child’s legal father will be – in some cases, the biology of the “father” has become completely irrelevant to the issue of legal paternity.
In an effort to keep this from being ridiculously confusing, I am going to start with some very basic information, including…. How babies are made, according to lawyers.
The first fork in the baby-making road comes early: Is the child conceived “the old-fashioned way,” to quote one jurist, or by some form of medical intervention – in vitro fertilization or artificial insemination?
The next fork in the road sort of doubles back on the first one: was the child conceived or born during marriage, or outside of marriage?
Having asked those two questions, the law then starts labelling would-be fathers in a variety of ways. Whether a man likes it or not, at the commencement of any litigation dealing with his possible or probably children, the Court will label him as one of the following:
- Presumed Father. A presumed father has the best chance of being adjudicated the child’s legal father. If the couple was married at the time of conception/birth, the husband in that pair is deemed the “presumed father.” If the parents are not married (to each other or anyone else) and the male signs a Voluntary Declaration of Paternity, then he is deemed the “presumed father.” This means that if someone else wants to claim fatherhood of the child, that person must overcome the presumption that the husband is the child’s father. It also means if he later finds he is not actually the child’s father, he may not be able to do anything about it.
- Alleged Father. An alleged father is that individual who either claims to be the child’s father, or who is named by the child’s mother as being the father. And yes, you can have both an alleged and a presumed father, even if the presumed father is married to the actual mother.
- Biological Father. This is the person whose “biological material” was employed in creating the child. Depending on whether the parties were married or not, whether the child was conceived naturally or artificially, the biological father may have significant legal rights with regard to the child, or absolutely no legal rights to the child.
All of this starts with filing a petition, of one kind or another. It can be a Petition to Establish Parental Relationship or a Petition for Dissolution – or, to some poor unsuspecting men, it’s been a Petition to Establish Parental Responsibility, in which the Department of Child Support Services is seeking to name someone as a legal father so they can start collecting child support from him.
We will begin exploring how these different definitions, and different circumstances at birth and conception, can be used to establish or challenge paternity of a child, in next week’s post.
