Rights of the mother

When a child is born during a marriage, the husband is presumed to be the father of the child. If the parents were never married, the mother has sole legal and physical custody until a court order says differently. An unmarried father has no legal rights to custody, visitation or any information about the child. The mother can decide:

  • Where they live (relocating)
  • Which school the child attends
  • Which doctors and insurance the child uses

When the presumed father of a child denies parentage, the mother may choose to file a paternity suit. The filing of the suit typically compels the individual to submit to a DNA test in order to make that determination and also lays the groundwork for child support and, depending on the circumstances, visitation rights. The presumptive father also may file suit if he would like to establish paternity that has been denied by the mother, as can a child, although these are much less common. Below are answers to some of the most frequently asked questions about paternity suits.

How is the father of a child legally determined?

Assuming that there is no agreement between the parents, either the mother, alleged father, or even in some cases the child, can bring a paternity suit to identify the father of the child. Most paternity suits are filed to establish financial or moral responsibility, gain visitation rights or settle other issues in controversy between the parents.

If the circumstances warrant, a judge in a paternity suit will order a blood test from which DNA testing can conclusively determine whether the alleged father is the biological father of the child. After a determination is made, the judge can make a ruling on the issues outlined above or the parties can come to a private agreement.

Is the biological father the only person who can be legally recognized as the father?

The short answer is no, a man other than the biological father may be legally designated as the father of the child. But determining legal paternity can be a complicated problem which attempts to find clarity in circumstances which range from the straightforward to the extremely complicated. Making this determination in a paternity suit often involves heated arguments on both sides and the legal standard for paternity varies from state to state. While we'll cover the basics below, you should investigate your state's laws in order to make an informed determination about your situation.

There are several legal classifications of fathers, and once established, paternity is difficult to change and unless there is a private agreement between the father and mother to the contrary, fathers are obligated to pay child support.

  1. Acknowledged Father
  2. Presumed Father
  3. Equitable Father
  4. Unwed Father

If I legally establish that a man is my child's father, is he responsible for child support and how do I get it from him?

If paternity is established by one of the methods above, the father is required to provide child support for the child. The father also gets visitation rights and can seek custody of the child.

Once paternity is established, if the father refuses to pay child support, or does not provide enough, he will be subject to enforcement measures. All states have child support or child welfare agencies which can track down "deadbeat dads" through a variety of methods, including social security numbers, employment records, DMV searches, etc. Courts can place liens on property, garnish wages and even imprison fathers who don't pay child support. You should explore all options through state and city agencies, or by contacting an attorney in your state who can do this as well as file a motion in court to compel the father to pay.

Get Professional Legal Help with Your Paternity Suit

Altering paternal rights, either acquiring them or having them stripped, can be a grueling and confusing process. Courts take the rights of parents very seriously, and changing paternal rights can impact a father's ability to make decisions for their child, impact their liability for child support, and create or eliminate inheritance rights. Attorney David Brandwein has over 20 years of experience in these matters.