Child Custody: Paternity

Who’s your daddy?

Determining child custody in a divorce hearing is not a straightforward answer to that question. Determining parentage, or paternity, can rely on different legal rules based on different circumstances.

Let’s take a look.

Parentage or paternity is either agreed upon (acknowledged), or presumed.

The acknowledged father is a biological father of a child born to unmarried parents, for whom paternity has been established by either the admission of the father or the agreement of the parents. An acknowledged father must pay child support.

If any of the following conditions are true, a man is presumed to be the father of a child, or the presumed father, unless he or the mother can contradict them in court:

  • The man was married to the mother when the child was conceived or born (although some states do not consider a man to be a presumed father if the couple has separated).
  • The man attempted to marry the mother (even if the marriage was not valid) and the child was conceived or born during the attempted marriage.
  • The man married the mother after the birth of the child, and, agreed either to have his name on the birth certificate or to support the child.
  • The man welcomed the child into his home and openly behaved as if the child were his.

In some states, any of these presumptions of paternity is considered conclusive, which means it can’t be disproven – even with contradictory blood tests.

In the case of Michael H. v. Gerald D., 491 U.S. 110 (1989), the U.S. Supreme Court upheld California’s presumed father statute as “a rational method of protecting the integrity of the family against challenges based on the due process rights of the father and the child.”

Like an acknowledged father, a presumed father must pay child support.

There are other wrinkles to the opening question, arising over the past ten years or so.

The law has changed a great deal in the last decade, and in several states, a spouse who is not a legal parent, meaning a biological or adoptive parent, may be granted custody or visitation under the ruling of equitable parent. Courts apply this concept when a spouse and child have a close relationship and consider themselves parent and child, or where the biological parent endorsed and encouraged that relationship . If the court grants an equitable parent custody or visitation, then the parent will also be required to pay child support. This type of parentage decision occurs frequently when same-sex couples are parenting together.

An unmarried man who gets a woman pregnant is often referred to as an alleged father, or sometimes simply as an unwed father. An alleged or unwed father will be required to pay child support if a court determines, or he acknowledges, that he’s the father. Also, an alleged or unwed father has the right to visitation with his child and may seek custody.


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