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Paternity is a heated, contentious topic when raised as part of a divorce proceeding, and needs to be handled properly to avoid harming the child involved. To avoid emotionally scarring a child, doubts about paternity should be handled through proper legal methods, rather than such doubts being argued about in front of the child. If you have questions about the paternity of a child, there is simple DNA testing that can be conducted, such as a buccal swab, to determine the true father. If the father is unwilling to submit to DNA testing, a court order can be obtained. A motion for a court order for DNA testing to determine parentage should be filed early in the divorce proceedings to allow the issues to be dealt with timely and not further complicate the other issues involved.
When a couple is married, the court presumes the husband to be the father of any children born during the marriage and a duty of support and custody will automatically attach to the husband under state law. This is a legal presumption, regardless of whether a birth certificate, acknowledgment of paternity, or affidavit of paternity was signed. An alleged father to a child born out of wedlock is referred to as a putative father. In order to avoid being a presumed father, a paternity test needs to be conducted according to state rules. To disprove parentage, the burden of proof lies on the presumed father or petitioning party. This is called rebutting the presumption.
A biological father has a duty to support his minor children, even after a divorce. But what happens when a father later discovers that the child support he already paid was for another man's child? In most cases, the court will not retroactively reimburse the alleged father for past child support payments. It is possible to modify a child support order to stop payments based upon a finding that he is not the paternal father. It's also possible that a court may order child support for non-biological children if the man has failed to object to lack of paternity. However, to claim back support, a paternity fraud claim must usually be filed, alleging that the mother intentionally deceived the man into thinking he was the father, and this is an unsettled area of law. There is no established legal precedent for allowing retroactive child support awards in such cases. Paternity fraud has also involved claims against DNA testing labs for falsifying results, and for improper use of in vitro fertilization methods which caused the birth of a child that is genetically the man's biological child, but this area of the law is still being developed.
When child support is sought, this may prompt a paternity dispute, which can only be resolved through a court order for paternity testing. The motion for paternity testing can come from either parent, the child support office, or the court may order testing through its own initiative.
HLA and DNA testing are the two methods used for paternity testing. However, DNA testing is the primary method used today. If the child hasn't been born yet, it's possible to collect blood or umbilical fluid from the mother to collect DNA to be matched against the alleged father's. To check parentage after the birth of an infant, blood from either the umbilical cord or a buccal swab of the child's cheek can be used for paternity testing. Thumbprints and photograph identification should be given to the lab to prevent paternity fraud claims. Courts typically require that the testing be performed by an accredited lab, and a list of approved paternity testing centers may be provided through the court.