Paternity Presumptions in the Age of the Modern Family

Paternity Presumptions in the Age of the Modern Family

James J. Vedder

James J. Vedder

August 12, 2019 05:38 PM

Establishing a parent-child relationship creates constitutional rights and moral, social, and financial obligations. For this reason, one of the most important legal presumptions in family law cases is the presumption of paternity. But as technology has advanced and family structures have changed, determining who is a child’s legal father has become more complicated. Generally, paternity is established in one of three ways:

1) Marital Presumption

The oldest and most common presumption of paternity is the “marital presumption.” The presumption assumes that a child born during a marriage is the biological child of the mother’s husband. Family courts continue to rely on this presumption because it is an efficient means of determining paternity.

However, the law has not kept pace with changing family structures. For example, it is unclear if the marital presumption applies to same-sex couples. Without the presumption, the non-biological parent must formally adopt the couple’s child to ensure that he/she receives the same parental rights as the biological parent.

2) Biological/Genetic Connections

Genetic testing makes it possible to know with almost scientific certainty the identity of a child’s biological parents. With advances in technology, it is also easier than ever to take a genetic test in the comfort of your own home. While genetic testing might seem like the perfect solution to paternity determinations, the rise of assisted reproductive technology creates situations in which the biological parent is not necessarily the child’s intended legal parent (e.g., surrogacy arrangements). In those cases, genetic testing is not helpful in determining who should parent the child.

3) Intent/Functional

The intent/functional approach to paternity focuses on the actions of the parent seeking to establish the parent-child relationship instead of marital or biological connections. Courts will consider whether the man held himself out as the child’s father and intended to care for the child. Fathers can also voluntarily assume parental obligations by signing an acknowledgment of paternity.

Rebutting the Presumption

Once paternity is presumed, a parent or a third party may seek to challenge the presumption of paternity. Depending on the state where the action is brought and the circumstances of the case, a party may be able to rebut the presumption of paternity by:

  • Rescinding the voluntary acknowledgment of paternity within the required timeframe;
  • Contesting paternity on the basis of fraud, duress, or material mistake of fact;
  • Proving that the presumed father and mother of the child never cohabited or engaged in sexual intercourse during the probable time of conception;
  • Establishing that the presumed father never openly held out the child as his own; or
  • Submitting to a genetic test.

However, even if a party can successfully rebut paternity, the court is not required to allow it. The court will look at the length of time that has passed and consider whether or not disestablishing paternity is in the best interests of the child. Given the significant emotional and financial issues at stake, it is important to consult with an attorney prior to taking steps to acknowledge or rebut paternity.

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

Could Reign Supreme End with the Queen?

by Sara Collin

Canada is revisiting the notion of abolishing the monarchy after Queen Elizabeth II’s passing, but many Canadians and lawmakers are questioning if Canada could, should and would follow through.

Teacup on saucer over image of Queen's eye


2022: Another Banner Year

by John Fields

Block O’Toole & Murphy continues to secure some of New York’s highest results for personal injury matters.

Three men in business suits standing in office

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Thirteen Years of Excellence

by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background

The Upcycle Conundrum

by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Announcing The Best Lawyers in Germany™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes