PATERNITY LAWYER IN OVERLAND PARK, KANSAS
Paternity is the legal process for determining the parents of a child. At first this may seem obvious and simple but determining whom can stake legal claim and authority over a child can be a complicated process with high emotions. Staking legal claim to a child is often not as simple as, "He or She is my child because I had sex with the mother nine months before the child was born." When a parent seeks to establish Paternity they are asking the Court to give them legal power over another human in some capacity. Although it may seem straightforward there are various legal hurdles to overcome and presumptions of paternity that one may have to combat. Similarly, having someone claim that a child is yours and seeking monetary support through the paternity process can be equally as confusing. Not being well versed in the law concerning paternity can result in lifelong financial strain and in some cases, paying for a child that isn't biologically yours.
There are several different scenarios in which someone may seek to establish paternity with a paternity lawyer. The most common scenarios are listed below:
A child is born to an unmarried mother and the mother is seeking support for the child from the father. The mother will seek to establish paternity through the court using a paternity lawyer. The alleged father many time agrees to paternity, but may contest paternity if he believes the child is not his child.
A child is born to an unmarried mother and the father is seeking to establish legal rights and visitation with the child. The father may seek to establish paternity with a paternity lawyer and the mother may choose to contest paternity or agree to paternity.
A child is born to a married mother but another man may be the father. There is a presumption of paternity with the spouse of the married mother. The married mother may seek to establish paternity with the "other man" or the married husband may seek to contest paternity if he believes the child is not his.
HOW IS PATERNITY ESTABLISHED IN JOHNSON COUNTY, KANSAS?
Knowledge of proceedings to establish paternity is crucial to any family law attorney practicing in today’s legal environment. This is due to the vast and ever growing number of children who are born out of wedlock. When a child is born out of wedlock in Kanas, either the mother or father must move to legally establish parentage of the child, or paternity as it is more commonly referred.
Kansas, like any other state, has its own set of legal procedures and precedents to legally establish paternity; and while generally for most children born out of wedlock both the mother and father are readily identifiable, and readily admit their parentage over the child, in Kansas, a parental duty is created, or imposed, only where the legal relationship is established by acknowledgment or judgment. Simply put, this means you must go to Court.
Kansas’ Parentage Act can be found in Article 22, of Chapter 23 of Kansas Statutes Annotated. Kan. Stat. Ann. 23-2201 et seq. One of the key purposes of the Act, if not the key purpose, is to legally establish a parent child relationship, or “paternity” as it is more generally referred to in Court.
As used in the act, “parent and child relationship” means “the legal relationship existing between a child and the child’s biological or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. It includes the mother and child relationship and the father and child relationship.” Kan. Stat. Ann. § 23-2205.
In Kansas, one of the most common ways for paternity to be established is to have a formal acknowledgment of the paternity. This can be accomplished by the completion of a form that satisfies the requirements of the relevant statue. Fortunately, the State has imposed a duty on the state registrar of vital statistics, in conjunction with the secretary for children and families, to both review and, as needed, revise acknowledgment of paternity forms for use under statute. An attorney can help provide and prepare an appropriate acknowledgement form.
This acknowledgment process is the preferred and most utilized procedure for establishing paternity in Kanas, as generally speaking it is both the most cost-effective and timely method for doing so. However, if one or either of the presumed or alleged parents dispute paternity, another method must be used; as the acknowledgment procedure presumes, and requires, that both parents readily admit and acknowledge who both parents of the child are.
In a situation where one or both of the presumed or alleged parents disputes paternity, Kanas law provides that a genetic test shall be conducted to resolve the dispute. Specifically, Kan. Stat. Ann. § 23-2212 states that:
[w]henever the paternity of a child is in issue in any action or judicial proceeding in which the child, mother and alleged father are parties, the court, upon its own motion or upon motion of any party to the action or proceeding, shall order the mother, child and alleged father to submit to genetic tests.
It is important to stress at this juncture that if paternity is in dispute, either presumed parent of a child may petition the Court for an order requiring a genetics testing be conducted. Thus, the law provides a mechanism for a parent to, in essence, compel another parent to produce themselves or a child for genetics testing. See Kan. Stat. Ann. 23-2209. All such tests “shall be made by experts qualified as genetic examiners who shall be appointed by the court.” Id.
Similarly, if paternity is in dispute, and the parties determine a genetics test is necessary to resolve the question of paternity, the parties can voluntarily agree to have such a test conducted on their own. That said, it is still encouraged, even in situations where both parties agree a test in necessary, that the parties petition the Court for an Order for the genetics test. This will ensure that any test that is issued complies with the necessary legal and evidentiary requirements required to have the results of the test admitted into evidence in a formal Court proceeding.
While traditionally a genetics test is the preferred method of resolving a paternity dispute, as it will often provide a clear answer to whether a presumed father is the parent of a child or not, statute permits other forms of evidence to be utilized in trying to offer up proof of paternity. These include the following:
Evidence of sexual intercourse between the mother and alleged father at any possible time of conception.
An expert’s opinion concerning the statistical probability of the alleged father’s paternity based upon the duration of the mother’s pregnancy.
Genetic test results of the statistical probability of the alleged father’s paternity.
Medical or anthropological evidence relating to the alleged father’s paternity of the child based on tests performed by experts. The court may, and upon request of a party shall, require the child, the mother and the alleged father to submit to appropriate tests.
Testimony, records and notes of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth. Such testimony, records and notes are not privileged.
Any other evidence relevant to the issue of paternity of the child, including but not limited to voluntary acknowledgment of paternity made in accordance with K.S.A. 23-2204, and amendments thereto. See Kan. Stat. Ann. § 23-2213 (a).
In the end, as noted above, a parental duty is imposed or created only where the relationship is established by acknowledgment or judgment, and a corresponding Court order. This means you must go to Court to secure an Order that formally finds an individual is the parent of a child. A party has two options for this as summarized above: complete an acknowledgment form that complies with statute, and secure a Court order with that; or proceed to have a genetics test conducted, and utilize the results of the test to secure a necessary order. In either situation, you will need an Order at the end. The question is merely whether this can be accomplished timely with an acknowledgment of paternity by both parties, or whether a genetics test and a formal evidentiary hearing is required.
As soon as a child is conceived, the father is and will always be the “biological parent” of that child. Legal status as a child’s father is something quite different. Kansas law will assume a man married to mother when she gives birth is the child’s “legal” father. But what about unwed couples? There, additional steps must be taken for the biological father to assume the role of “legal” father. Below if a brief overview of how to establish paternity and why it matters.
WHY SHOULD I ESTABLISH PATERNITY?
The law places legal obligations of care, support, and shelter on the legal parents of a child. Often, both legal parents happily undertake these obligations as part of raising the child. However, one parent (or the state) may need to resort to court order to make a parent honor his or her responsibilities to the child. Establishing paternity is the prerequisite for these orders; without establishing an individual is the legal father, there is no legal obligation to support. This is true even if the father claims to be the biological father to the general public. Paternity is a legal matter, and must come from a proper legal process.
Paternity doesn’t only have negative consequences. Many fathers may want to establish paternity to ensure that they have a right to raise their children. Establishing paternity allows a father to get a court order to have access to his children if the other parent attempts to limit such time. In fact, without paternity the mother could even place the child up for adoption and never tell the father. He must have the legal status to have any say in how his children are cared for. Finally, should the father suddenly pass away without a will, the child could get nothing from his estate without established paternity. Put simply: Without established legal paternity, the law treats the father and child as strangers.
HOW IS PATERNITY ESTABLISHED?
Paternity can be established in a number of ways. As mentioned above, a child born during a marriage is presumed to be the child of the husband. This is the only instance in which a father’s paternity is established automatically. For unmarried couples, there is no presumed relation with any father, no matter how much he holds himself out to be the father. The biological mother—for obvious reasons—is established automatically in either case. Establishing paternity outside of this presumption is controlled by Section 23-2207.
The first opportunity to establish paternity under Section 23-2207 is also the most common: signing an acknowledgment of paternity form. Kansas law requires that an official birth certificate be produced for every baby born in Kansas. The mother’s name will automatically appear on the form, which she will have to sign. For the father’s name to appear, he must also sign a form acknowledging his paternity. The hospital will generally provide both of these forms to the father, and most fathers willing sign to acknowledge paternity. The easiest way to think of these forms is like any other contract: father signs for the benefits of raising and parenting the child, but he does so at the cost of assuming a legal obligation to provide for the child throughout his or her life. It is important to note that revoking this acknowledge is very difficult and must occur within one year of the child’s birth. And traditional contract defenses, such as failing to understand the obligations, cannot be applied to these forms, as the Kansas Supreme Court recently highlighted in State ex rel. Gafford v. Smith.
If the paternity is not voluntarily recognized, it may be “forced” upon the father through court order. Any one acting on behalf of the child can file a petition with the court to establish paternity up until the child’s 21st birthday. The state can also file this type of action when the state is paying to support the child (but only while the child is still a minor). Generally, these petitions also seek child support or reimbursement for state debt incurred supporting the child. Once the petition is filed, discovery will commence and ultimately the issue will be decided via settlement or a trial.
Section 22-2213 controls evidence for these proceedings. The evidence today is largely driven by scientific pieces, including genetic testing and doctor’s testimony. Traditional evidence is still presented, which includes how the father holds himself out to others concerning relation to the child and evidence that the father had intercourse with the mother during the appropriate timeframe. Section 23-2212 allows the court to force all parties (mother, child, and alleged father) to submit to DNA tests, which are commonly cotton-swab tests rather than blood draws. Though this genetic testing is very important, it is not necessarily conclusive. For example, the mother in Guth v. Wagner simply presented an over-the-counter DNA test (in an effort to save money and without advice from a lawyer) that showed Wagner was the father. The court declined to believe the test, however, based upon its self-proclaimed low accuracy, uncontrolled testing conditions, and mother’s inability to explain how the test worked.
Establishing paternity is a very important step in raising a child. It is important to establish paternity early and to understand fully the ramifications of doing so. Because of the sharp difference between the status of biological father and legal father, courts are generally unwilling to undo acknowledgments of paternity without truly outrageous circumstances. On the flip side, a father that fails to establish paternity may find that he is pushed out of the child’s life altogether or without a say in raising his child. It is important to talk about these issues with experienced counsel before they appear. Planning for the worst can prevent highly adversarial paternity actions later. As the adage goes: An ounce of prevention is worth a pound of cure.
DOES IT MATTER IF SOMEONE'S NAME IS ON THE BIRTH CERTIFICATE FOR A PATERNITY CASE?
It is not an uncommon situation, when you have a child born out of wedlock, that the paternal father’s name may not appear on the child’s birth certificate. The question is then what difference does it make if the father’s name is present on the birth certificate, verses if it is not.
In Kansas, whether or not a man’s name appears on a child’s birth certificate can indeed have an impact in Court proceedings where paternity (or parentage of a child) is at issue. However, scholars and practitioners alike have argued just how much significance or importance it carries. Kan. Stat. Ann. 23-2208 et seq. is the controlling statutory provision on this question. Pursuant to Kan. Stat. Ann. 23-2208, a man’s name being on the child’s birth certificate can create a “presumption” of paternity at best. To be clear, this means that even if a man’s name does appear on a child’s birth certificate, that fact alone does not conclusively, or legally, establish paternity. Rather, it only creates a presumption of paternity. One that can be rebutted by other evidence should such an occurrence arise where the parentage of a child is in dispute. The relevant statutory language reads as follows:
A man is presumed to be the father of a child if: …
After the child’s birth, the man and the child’s mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and:
The man has acknowledged paternity of the child in writing;
with the man’s consent, the man is named as the child’s father on the child’s birth certificate; or
the man is obligated to support the child under a written voluntary promise or by a court order. See Kan. Stat. Ann. § 23-2208 (a) (3).
As the above language again indicates, the presence of a man’s name on a child’s birth certificate can create a presumption of paternity under the appropriate circumstances. However, this presumption does not create any form of legal rights or responsibility in and of itself. For more information on what creating a presumption of paternity means, and what may come after establishing this presumption, please see this article.
Having addressed what it means if a man’s name is present on a child’s birth certificate, it is necessary to also address what it means if a man’s name is not on a child’s birth certificate. Which again can be common in situations where a child is born outside of wedlock. In short, whether or not a man’s name appears on a child’s birth certificate has very little impact in judicial proceeding in Kansas when addressing matters relating to paternity. This means that regardless of whether you are simply trying to establish paternity in the first instance, or addressing more complex matters like child support or visitation that are related to paternity, courts in Kansas generally do not place a significant amount of emphasis on a man’s name being present on a birth certificate. This is because, as alluded to above, the presence of a man’s name on a child’s birth certificate will at best create a presumption of paternity. It again creates no legal rights or responsibilities standing alone. To do this, either one or both of the parents of a child must institute a formal Paternity Proceeding and must go to Court to get an Order legally establishing paternity. For more information on what creating a presumption of paternity means, and what may come after establishing this presumption, please see this article.
This above generally good news for fathers who learn their names may not be on a child’s birth certificate after the child has been born. It is not uncommon to find father’s in these situations concerned that their rights and privileges may somehow be diluted or reduced simply due to their name being absent from a child’s birth certificate. This is simply not the case, however.
Should a father find himself in this specific situation, there is recourse. Once paternity has legally been established in Court, via a Court order, the father of a child may petition the Court to have the State and its corresponding agencies issue a new birth certificate wherein the child’s father is appropriately named. While there are many reasons that it is important to have a new birth certificate issued should a father learn they are not named on the original birth certificate, two of the most common relate to securing health insurance and survivor related benefits for a child. That is, without being named on a birth certificate, many insurance carriers and other benefit provides will not allow a parent to insure or secure benefits for a minor child they are claiming is their direct decedent (as opposed to a situation where a legal adoption would be involved, or where an individual may add a child to their family by way of remarriage).