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.