Key Takeaways
- An unmarried father typically establishes legal parentage by signing a voluntary acknowledgment of paternity with the birth mother, often at the hospital.
- After a 60-day rescission period, an acknowledgment has the effect of a court judgment and can be challenged only for fraud, duress, or material mistake of fact.
- A genetic father may be unable to establish paternity if another man has already signed an acknowledgment or been adjudicated the father, and courts can deny genetic testing when it would not serve the child's best interest.
When an unmarried couple has a baby, how does the father get his name on the birth certificate? And what happens if it later turns out he is not the biological father?
In this TalksOnLaw Brief, Joel Cohen talks with Douglas NeJaime, Anne Urowsky Professor of Law at Yale Law School and a national leader on parentage law, about the acknowledgment of paternity: the form that establishes legal fatherhood for most children born outside marriage, and why it is much more than paperwork.
Birth Certificates Record Parentage
For a child born to an unmarried woman, Professor NeJaime explains, the biological father cannot be listed on the birth certificate unless he signs an acknowledgment of paternity, usually at the hospital. That signature establishes parentage. He stresses a point many people miss: birth certificates do not create parentage. They are evidence of it, a record of a legal status that comes from somewhere else.
A Federal Child Support Origin
Acknowledgments, he says, grew out of federal involvement in what had traditionally been a state matter. In the late twentieth century, Congress wanted states to collect more child support, as more children were born outside marriage and more mothers with custody turned to government benefits. One law required states to adopt hospital-based paternity establishment programs, which gave us the acknowledgment. An unmarried man signs it with the birth mother, stating that he is the biological father and accepting the rights and responsibilities of parenthood. By signing, he waives genetic testing, and some men sign knowing they are not the biological father. After 60 days the acknowledgment has essentially the force of a judgment; within those 60 days it can be rescinded. After that, federal law allows a challenge only for fraud, duress, or material mistake of fact, and in most states simply not being the biological father is not enough.
Competing Fathers and DNA Tests
The acknowledgment's power shows up when another man comes forward. In a state where a child can have only two parents, a biological father may be unable to establish paternity because another man already has. Otherwise, a man claiming to be the genetic father can petition to establish paternity and seek court-ordered DNA testing, or the parties can agree and sign an acknowledgment. Some people, such as donors, cannot establish parentage based on genetics, and in many states a court may deny testing if it would not be in the best interest of a child who has bonded with another father.
What to Know Now
The system Professor NeJaime describes remains federal law: states must offer voluntary acknowledgment programs, honor a 60-day rescission period, limit later challenges to fraud, duress, or material mistake of fact, and give full faith and credit to acknowledgments signed in other states. Reform has broadened the tool in some places. Under the Uniform Parentage Act of 2017, adopted in a number of states, the form becomes an acknowledgment of parentage that can be signed by an intended parent of a child born through assisted reproduction, not only by an alleged genetic father. Because an acknowledgment is so hard to undo, anyone unsure about biological paternity may want genetic testing and legal advice before signing.
