The process for establishing paternity in cases of an unmarried mother can be complex. Professor Douglas NeJaime (Yale Law School) explains “Acknowledgement of Paternity,” a document a father can sign to establish parentage and get on the child’s birth certificate. Prof. NeJaime also explains the historical context of the Acknowledgement of Paternity, addresses cases in which more than one father attempt to establish paternity, and how DNA tests fit into the process of establishing paternity.
Prof. Douglas NeJaime is a professor at Yale Law School and a leader at the intersection of family law and assisted reproduction.
What is an Acknowledgement of Paternity?
Prof NeJaime: For a non-marital child when a woman gives birth the biological father cannot get on the birth certificate unless he signs what's called an acknowledgment of paternity which is something that he would do ordinarily in the hospital and that establishes parentage and that's how he can get on the birth certificate so over time states have tried to lessen the gap between birth certificates and parentage but people should be clear that birth certificates do not establish parentage they are merely evidence of parentage they record parentage
Joel Cohen (Host): And the acknowledgment of paternity: is that a binding document in some way or is that something that could then be I suppose rebutted with a genetic test?
Creation of the Acknowledgment of Paternity
Prof NeJaime: Acknowledgements are fascinating because they are a creation of in many ways federal intervention into this traditional state arena. In the latter part of the 20th century Congress got very involved with parentage because it wanted to collect more child support; it wanted states to collect more child support because rates of non-marital child rearing were going up and ordinarily you would see more mothers with custody of those children they might apply for government benefits and the states and the federal government were trying to get more essentially unmarried fathers to pay the support that would otherwise be coming from government benefits and so Congress passed legislation multiple times but one important piece of legislation required that states have what they called a hospital-based system of paternity establishment and that's what gave us the acknowledgement of paternity and it's available for an unmarried man to sign. He signs it with the birth mother and that is them saying that he is the biological father and that he is taking on rights and responsibilities. When he signs it, he's waiving his right to genetic testing so the reality is some men are signing this knowing that they're not the biological father but the acknowledgment of paternity has the force of essentially a judgment of paternity after 60 days. It can be rescinded in those first 60 days and so once that 60 days passes it can only be undone under really challenging circumstances. The federal law requires that it can only be undone based on fraud, duress or mistake of fact and in most states just not being the biological father is not enough.
Cases of Involving Contested Paternity
Host: What about if another father appears and wants to assert their rights?
Prof NeJaime: Yeah, so that's the other thing that makes the acknowledgements really influential is that if you're in a state in which a child can only have two parents and let's say the acknowledging father is not the biological father and then biological father comes forward he might not be able to actually establish his paternity because another man already has done so.
Host: Wow that's quite bureaucratic. You mentioned genetics as well as a way of showing paternity. How does that fit into this regime? Is something that you know you just get a DNA test and that's good enough?
Prof NeJaime: Yes, so generally if someone is trying to establish paternity based on being a genetic father of the child, they can file a petition to establish paternity, provided there's not another person who's been adjudicated the father of the child or scientific acknowledgement and they can move for DNA testing. And then the parties could all agree right because mom could say yeah he is the genetic father and then they can just sign an acknowledgement and it all gets dismissed or if it's contested a DNA test can settle that matter but it would be ordered by the court and then different states have provisions that regulate genetic testing for paternity purposes but generally the genetic test would show you this man you know it's 99.4 percent probability that he's the genetic father. Now I will say there's some people who cannot establish parentage based on genetics like donors so we'll talk more about that but also in many states a court is authorized to deny a request for genetic testing if it wouldn't be in the best interest of the child. So let's say another man has been parenting the child and he's a father of the child legally but now there's a man who says well i want to contest that i'm the biological father a court could authorize that or could say no we're not going to allow genetic testing because it wouldn't be in the best interest of this child who's developed a parent-child relationship with this other man. So, it becomes very fact specific