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 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.