How do I establish, contest, or disestablish paternity?

by Justin D. Riem

Becoming a parent can be a life changing experience. Whether you are married or single, the mother or father, or an alleged father, the concept of paternity is a vast and important aspect of family law.

Definitions

First, you should know some different terms regarding this area of family law and how Iowa both defines and uses them. “Paternity” generally means the relationship between a man and his offspring. “Putative father” means a man who is alleged to be or who claims to be the biological father of a child born to a woman who is not his wife at the time of the child’s birth. “Legal (or established) father” means a man whose paternity of a child is legally recognized. “Father” means the male, biological parent of a child.

Establishing Paternity

Paternity may be established in many different ways and can often involve going to court. Most of those cases are started by the Iowa Child Support Recovery Unit (CSRU), usually when the mother and/or child are receiving financial or medical assistance from the state. The following are ways in which paternity can be established:

  • Marriage: If the parents are married at the time of the child’s birth, regardless of whether the husband is listed on the birth certificate, Iowa law recognizes the husband as the father. No affidavit or court order is necessary.
  • Declaration of Paternity: Before birth (assuming the parents are not married) the father may declare his paternity by filing a Declaration of Paternity with the Iowa State Registrar of Vital Statistics. This Declaration can be filed any time before a petition to terminate parental rights is filed. It is important to note that the Declaration does not legally establish paternity, but is used as evidence of paternity once an action to establish paternity is commenced.
  • Affidavit of Paternity: After birth (assuming the parents are not married) the father can legally establish paternity by filing an Affidavit of Paternity with the Iowa State Registrar of Vital Statistics. The mother must sign this Affidavit as well. The Affidavit has the same effect as a court order establishing paternity.
  • Petition to Establish Paternity: If the mother will not consent to an Affidavit of Paternity, the father may file to establish paternity, in which the Court can determine custody arrangements, visitation schedules, and order child support. Genetic tests can also be requested by either party or even ordered by the Court.

Effect of Establishing

Once paternity is established, a parent-child relationship is recognized between the child and the father, and the father is deemed responsible for the support of the minor child until the child reaches the age of majority. However, under Iowa law, the mother of a child born out of wedlock whose paternity has not yet been acknowledged and who has not yet been adopted automatically has sole custody of the child unless a Court orders otherwise. Therefore, even if a judgment of paternity is entered after the child’s birth, the father must file a petition to have custody and visitation rights. There are no standard forms for this petition and the process can be confusing, time-consuming, and costly if not handled properly so it is highly recommended that a trained attorney be retained.

Contesting Paternity

Most commonly, paternity will be contested to challenge a child support order that has been or will be entered. There are strict requirements, however, for how and when paternity can be contested. Here are some things to keep in mind when considering the issue of contesting paternity.

Firstly, do not ignore notices from the Court or CSRU, or assume if you don’t respond or show up to the hearing that support cannot be ordered against you. It can and it will; it’s called “default.” If the action was properly filed, if you were provided with proper notice, and if you don’t show up to the hearing, the Court will order that you are the child’s father by default because you did not deny it, and child support will be set without you ever appearing in court.

Support orders entered against unmarried fathers are meant to be for an amount necessary for the care and support of the minor child. One of the main reasons behind each child support order is to provide financial compensation for the absence of the alleged father’s support in the child’s and mother’s lives. However, support orders can be financially oppressive and, often, can drastically overestimate the alleged father’s actual income available for support. Support orders can also authorize CSRU to take money directly from your paychecks and your tax refunds. Moreover, once set, reducing or terminating a child support order is not a simple task and can take a very long time depending on the circumstances. Therefore, it is very important to make sure the Court is given all necessary information about your income and any other dependents so support can be set as accurately and fairly as possible.

The issues of custody and visitation are not automatically addressed in support orders so, if CSRU obtains a court order requiring you to pay child support for an alleged child, you will need to start a separate action to have any court-ordered custody or visitation arrangements with the child. Additionally, if you believe you are not the father, you can request genetic testing, but this request must be made properly and at the right time, otherwise you will have to pay for the testing, which can be very expensive. Again, don’t ignore the notice.

Finally, even if a father is successful in terminating or reducing his child support obligation, in almost every case, any amount of unpaid support which has accrued up to that point will remain due and owing as a debt. These unpaid child support amounts can become judgments and liens against a person or their property, which can lead to severe consequences such as forfeiture of driver’s license, having liens placed against property, forfeiture of property, or even jail time. If you have received notice that a support action is started against you, it is highly recommended that you seek the services of a trained attorney to understand the process and make sure that the Court is entering the proper order.

Disestablishing Paternity

Regardless of the circumstances, either party can seek to disestablish (undo or overcome) paternity in a number of ways. The process to follow will depend on the specific circumstances of each case.

If paternity was established by Declaration, Affidavit, or by default in a support action, the father can overcome paternity by prevailing in an action to disestablish paternity. Likewise, if a married woman gives birth to a child who is not the biological child of her husband, the husband will be presumed the legal father by operation of law unless he prevails in an action to disestablish paternity or during a divorce proceeding. Genetic testing will be ordered but, if the test results reveal a 95% or higher probability of genetic similarity, paternity will remain.

Petitions to disestablish paternity can only be filed by the child’s mother, established father, the child, or the legal representative of any of the above. There are also strict procedural and substantive requirements for each petition and proper service must be made on the non-filing parent and any other interested parties such as CSRU. Finally, a hearing will be held and the Court will appoint a Guardian ad Litem for the minor child.

Aside from genetic test results and testimony from the parties, generally speaking, the only other evidence courts will hear to disestablish paternity is evidence that the signed Affidavit of Paternity (if applicable) was based on fraud, duress, or material mistake of fact.

Effect of Disestablishment

The Court’s order disestablishing paternity includes the following provisions: a) the parental rights of the formerly-established father are terminated and there no longer exists a parent-child relationship between the two; b) the formerly-established father is relieved of any and all future support obligations owed as of the date of the order; c) any unpaid support due prior to the date of the order is satisfied; and d) the costs of genetic testing, guardian ad litem, and all court costs are to be paid by the filing party. Finally, unless specifically addressed in the Court’s disestablishment order, provisions previously established by court orders regarding custody and visitation of the minor child are unaffected by disestablishment proceedings.

Conclusion

As you can see from this brief article, paternity can be a large and complex area of family law. Although certain aspects are easy to understand, the process can become rather complicated depending on the specific facts of each case. Give that paternity and child support orders can have severe and long-lasting financial and personal impacts on a person’s life, it is highly recommended that the parties seek the services of a trained family law attorney to assist them in navigating their case.