PATERNITY LAWYER IN OVERLAND PARK, KANSAS
Paternity is the legal process for determining a child's parents. At first, this may seem obvious and straightforward, but deciding who can stake a legal claim and authority over a child can be a complicated process with high emotions. Staking a 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 grant them legal authority over another person 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 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 from the father. The mother will seek to establish paternity in court with the help of a paternity lawyer. The alleged father may agree to paternity many times, 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 Kansas, either the mother or the father must take steps to legally establish parentage (paternity, as it is more commonly referred to).
Kansas, like any other state, has its own set of legal procedures and precedents to establish paternity legally; 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 establish a parent-child relationship legally, 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 to establish paternity is through a formal acknowledgment of paternity. This can be accomplished by completing a form that meets the requirements of the relevant statute. 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 widely used procedure for establishing paternity in Kansas, as it is generally both the most cost-effective and the most timely. However, if either of the presumed or alleged parents disputes paternity, another method must be used, as the acknowledgment procedure presumes and requires that both parents readily admit and acknowledge who the child's parents are.
In a situation where one or both of the presumed or alleged parents dispute paternity, Kansas law provides that a genetic test shall be conducted to resolve the dispute. Specifically, Kan. Stat. Ann. § 23-2212 states that:
Whenever 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 that genetic 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 genetic 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 that a genetic test is necessary to resolve the issue, they can voluntarily agree to have the test conducted on their own. That said, even when both parties agree that a test is necessary, it is still encouraged that the parties petition the Court for an Order for the genetic test. This will ensure that any test issued complies with the legal and evidentiary requirements for admitting the test results into evidence in a formal Court proceeding.
While a genetics test is traditionally the preferred method for resolving a paternity dispute, as it often provides a clear answer on whether a presumed father is the child's parent, the statute permits other forms of evidence to be used to establish paternity. These include the following:
Evidence of sexual intercourse between the mother and the 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.
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 the statute and secure a Court order with that; or proceed to have a genetics test conducted and utilize the results of the test to ensure a necessary order. In either situation, you will need an Order at the end. The question is whether this can be accomplished promptly with both parties' acknowledgment of paternity or whether a genetic test and a formal evidentiary hearing are 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 that a man married to the mother at the time of the 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 is a brief overview of how to establish paternity and why it matters.
Why should I establish paternity?
The law imposes legal obligations of care, support, and shelter on a child's legal parents. 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 a court order to compel a parent to fulfill his or her responsibilities to the child. Establishing paternity is the prerequisite for these orders; without establishing that 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 be established through a proper legal process.
Paternity doesn’t only have negative consequences. Many fathers may want to establish paternity to ensure that they have the 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.
Is it common for someone to fight paternity?
Paternity can be established in several 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 must 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 are willing to sign to acknowledge paternity. The easiest way to think of these forms is like any other contract: the 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 acknowledgment 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 a court order. Anyone 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 in supporting the child. Once the petition is filed, discovery will commence, and the issue will ultimately be decided through settlement or trial.
Section 22-2213 governs the evidence in these proceedings. The evidence today is primarily scientific, including genetic testing and doctors’ testimony. Traditional evidence is still presented, which includes how the father holds himself out to others concerning the relationship to the child and proof 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 obtained an over-the-counter DNA test (to save money and without legal advice) that showed Wagner was the father. The court, however, declined to accept the test, citing its self-proclaimed low accuracy, uncontrolled testing conditions, and the mother’s inability to explain how it worked.
Establishing paternity is a crucial step in raising a child. It is essential 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 who 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 essential to discuss these issues with experienced counsel before they arise. 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, versus 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 over just how significant it is. 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. Instead, 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 make any legal rights or responsibilities in and of itself.
Having addressed what it means if a man’s name is present on a child’s birth certificate, it is necessary also to address what it means if a man’s name is not on a child’s birth certificate. This 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 minimal impact in judicial proceedings in Kansas 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 issues 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 makes 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.
The above is 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 fathers 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 not the case, however.
Should a father find himself in this specific situation, there is recourse. Once paternity has been legally established in Court via a Court order, the father of a child may petition the Court to have the State and its agencies issue a new birth certificate naming the child’s father. While there are many reasons, it is essential to have a new birth certificate issued if a father learns they is not named on the original birth certificate, two of the most common relate to securing health insurance and survivor 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).