How To Establish Paternity
If you are the father of a child, you may wonder, “How do I legally establish paternity of the child?” It’s difficult to cover this topic in an article that’s national in scope, because parentage law is different in all fifty states.
Fortunately, the Uniform Law Commission (a national organization that seeks to make law the same in every state) has drafted the Uniform Parentage Act (UPA) and has recommended that all states adopt the UPA. In states that have adopted the UPA, the law of parentage is largely the same. So far, twenty-two states have adopted the UPA. This post will address paternity law only in states that have adopted the UPA. If you, or your child, live in a non-UPA state, consult an attorney in your state to see how to establish paternity.
There are three different versions of the UPA: one introduced in 1973, one in 2002, and one in 2017.
· Colorado, Hawaii, Kansas, Illinois, Minnesota, Montana, New Jersey, and Ohio have adopted the 1973 UPA.
· Alabama, Delaware, Illinois, Maine, New Mexico, North Dakota, Oklahoma, Utah, Texas, and Wyoming, have adopted the 2002 UPA.
· California, Rhode Island, Vermont, and Washington have adopted the 2017 UPA.
· In Connecticut, Maine, Massachusetts, Nevada, and Pennsylvania, the legislatures have introduced the 2017 UPA, but have not passed it as of this writing (March 2021).
· More states will likely adopt the UPA in the future. For updates on states that have adopted the UPA, please see the UPA webpage.
There are a few minor differences between the three UPA versions. Also, even in states with the same version of the UPA, some states have made slight changes to the UPA. This means that if you want a full explanation of your rights to establish paternity in your state, you will need to check your state’s laws.
How to Establish Paternity in a UPA state
You are “presumed” to be the father of a child if:
· You are married to the mother and the child is born during the marriage
· You and the mother were married, and the child is born 300 days after the marriage was terminated by death, divorce, annulment, or separation
· You and the mother attempted to marry in compliance with the law, but the marriage was declared invalid, and the child was born during the marriage or within 300 days before the marriage was terminated
· You and the mother married after the birth of the child, and one of the following is also true:
1. You have acknowledged your paternity in a signed writing filed with the appropriate state agency (this agency is different in each UPA state), or
2. You agree to be named, and are named, as the father on the child’s birth certificate, or
3. (If your state has adopted the 1973 UPA) you promise in a written record to support the child, or a court orders you to support the child,
4. (If your state has adopted the 2002 UPA) you promise in a written record to support the child.
· You reside in the home with the child and openly hold out the child as your own during the following time period:
1. While the child is a minor (under the 1973 UPA)
2. For the first two years of the child’s life (under the 2002 UPA)
3. For the first two years of the child’s life, including any period of temporary absence from the home (under the 2017 UPA).
If you are not the presumed father
If you are not the presumed father, you may establish paternity by filing an acknowledgment of paternity with the appropriate state agency. This acknowledgment of paternity will only be valid if no one else is the presumed, acknowledged, or adjudicated father. Under the 2002 and 2017 UPA, the mother must also sign the acknowledgment. Under the 1973 UPA, you must notify the mother of the acknowledgment, and the acknowledgment will be valid if the mother does not dispute the acknowledgment “within a reasonable time.”
If the child has another presumed, acknowledged, or adjudicated father (or if the mother objects to signing an acknowledgment of paternity
If the child has another presumed, acknowledged, or adjudicated father, or if the mother objects to signing an acknowledgment of paternity, then (in most cases) you must file a paternity action in court. If a state has adopted the 2002 or 2017 UPA, you may file suit in that state, as long as that state has “personal jurisdiction” over the mother. The UPA doesn’t define what “personal jurisdiction” is, but, in other cases, the U.S. Supreme Court has held that a state has personal jurisdiction over any person who has “minimum contacts” with the state. The Supreme Court has said that having “minimum contacts” means that a person has "purposefully avail[ed] [her]self of the privilege of conducting activities within the forum State," and “the defendant's conduct and connection with the forum State [must be] such that [s]he should reasonably anticipate being haled into court there.” If a state has adopted the 1973 UPA, you may file a paternity suit if the state has personal jurisdiction over the mother, or if the mother has had sexual intercourse in the state.
Under the 1973 UPA, you must file the action in the county where the child or the alleged father resides or is found. Under the 2002 UPA and 2017 UPA, you must bring the action in the county where the child resides or is found or, if the child does not reside in the state, in the county where the mother resides or is found.
If you file an action in court, the judge will rule as to who is the father. The judge may order a DNA test.
There may be a time limit to when you can file your lawsuit. The laws governing time limitations are too extensive to list in a post of this length, but to summarize:
· If the child has no presumed father, you must bring the suit within three years of the child’s birth (under the 1973 UPA)
· If the child has no presumed, acknowledged, or adjudicated father, you may bring the lawsuit at any time (under the 2002 and 2017 UPA).
· If the child has a presumed father, you must bring the suit
o Within two years of the child’s birth (under the 2002 and 2017 UPA)
o “Within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child’s birth” (under the 1973 UPA).
· If the child has an acknowledged or adjudicated father, you must bring the suit
o Within two years of acknowledgment or adjudication (under the 2002 and 2017 UPA)
o “Within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child’s birth” (under the 1973 UPA).
The laws regarding time limitations are extremely complex and contain many exceptions. Also, it’s important to note that even in states that have adopted the UPA, some of these states have deviated from the UPA in their laws on time limitations. It’s best to consult a qualified family law attorney in your state rather than rely on this chart.
Conclusion
Many men feel hopeless when the mother of their child attempts to keep their child away from them. However, states have passed paternity laws so that the situation is not hopeless. Whatever your state’s law, your state likely gives you rights of paternity. Don’t feel hopeless. Use your rights!
Author Bio:
Kyle Persaud is the founder of Persaud Law Office where he currently practices paternity law and a wide range of other family law issues. Kyle Persaud received his B.A. from Oklahoma Wesleyan University and his J.D. from the TU College of Law.