FAMILY LAW ARTICLES
Who’s The Daddy? Part 2.
It may seem that I am going to spend a little too much time on this subject, but I think it is important for men to know their rights – and the time limits in which to assert them – when it comes to the possibility of paternity, whether voluntarily or involuntarily entered.
I have had a few cases where a mother, while living with one possible father (F1) became involved with another possible father (F2) and wound up pregnant. Who will be this child’s father?
Let’s go back to the questions outlined in my first “Who’s the Daddy?” post. For the purposes of today’s post, the child was created the old-fashioned way, which, one must admit, is far more common than by technological means. Today’s post is also limited to the situation in which F1 was living with the mother but not married to her, and she was involved with F2 around the time of conception of the child.
Living together but not married.
In this circumstance, F1 and F2, around about the time of birth, have a more or less equal chance to be named the “presumed” father. How does that work, you ask? All sorts of ways: sometimes F2 doesn’t know the mother is pregnant, because she doesn’t tell him; sometimes F2 knows that the child is his, but F1 believes the mother has only been with him; and sometimes F1 and F2 know about each other and each one is wondering… Who’s the Daddy?
Since F1 is living with the mother, it’s likely he will be the man invited to the birth of the child, and who will be invited by the mother to sign a Voluntary Declaration of Paternity (VDP). This is a big deal, and the most important thing I can say to any man who isn’t absolutely sure he’s the biological father of a child: do a DNA test before signing a VDP! Once you sign this document, you are the legal father and, absent a really good attorney and/or a marvelous stroke of luck, you will be paying to support another man’s child for the next 18 years.
Assuming F2 signs the Voluntary Declaration of Paternity, he would become the “presumed” father, particularly if the mother also signs the VDP.
What if neither F1 or F2 signed the VDP, and six months later, both men break up with the mother? Mother can allege that one is the father (making him the “alleged” father) by telling the Department of Child Support Services that he’s the biological dad: no proof is required because her word is good enough.
Because Mother was living with him during conception and for six months afterward, it’s likely F1 will be deemed the “presumed” father. What if that’s not his child, though?
What if F2 is certain the child is his, and not F1’s?
Either man – F1 or F2 – can file a Petition to Establish Parental Relationship. Either man can assert in the Petition that he believes he is, or believes he is not, the father of this child. The important thing to remember , though, is that he only has a limited amount of time to challenge the mother’s claim of paternity in order to either establish that he is the father, and has parental rights to this child… or to prove that he’s not the father, and thereby escape 18 years of child support payments.
What should you get out of this?
- Don’t sign a Voluntary Declaration of Paternity unless you have a DNA test saying you are the biological father. It’s better to know, than not to know.
- You have two years from birth, at the outside, to avoid being irrevocably deemed the father of a child with whom you have lived since that child’s birth, particularly if you have the child calling you “Daddy,” and are presenting the child to your family (and mother’s family) as your child. If you find out the day that child turns 25 months old that you aren’t the father… it’s probably too late to escape being that child’s legal Daddy for the next 18 years. There are some circumstances in which that could happen, but they are uncommon.
- You have less time, far less time, to assert that you are the father of a child born while the mother is living with another man. If you are M2, and want to know if that baby is yours… file a Petition to Establish Parental Relationship before or right after the child’s birth. You are entitled to a DNA test at this point. If the test proves you are the child’s father, your quick action preempted the other man, who also isn’t married to the mother, from becoming the “presumed” father in the eyes of the courts.
- The Department of Child Support Services does not have to personally serve you with documents to make you pay support for a child not yours – they just mail the documents to your last known address. For your own sake, open those documents up, and if someone is after you for child support, immediately file a Petition to Establish Parental Relationship[1] – whether or not you think you’re the Daddy. Ask for a DNA test. If the test comes back positive, you have peace of mind and know the child is yours. If the test comes back negative, you don’t have to pay for the test, and you are absolved from being liable for the support of a child who isn’t yours.
[1] If you are military, and overseas, by all means hire an attorney to advise you and file your Petition with the Court as quickly as possible.
