If you are a potential father looking to establish the paternity of a child you believe is yours, but on whose birth certificate you are not listed, there are few steps you can take to establish paternity and eventually exercise your parental rights. In some cases, however, a potential father who brings forth a case to establish paternity may be turned away by the court.
If I think I am the father, how do I establish paternity?
Paternity is automatically established at the time of birth if a man is married to the mother, making him the child's “legal” father whether or not he is the biological father. If, however, a child you believe is yours was born while you were not married to the mother, you can establish paternity by either:
- Executing a Voluntary Acknowledgement of Parentage if the mother agrees to it; or
- adjudication of paternity through a court order.
Executing a Voluntary Acknowledgement of Parentage when both parents are in agreement makes establishment of paternity easy and simple. If the mother of the child is not agreeable to signing a Voluntary Acknowledgement of Parentage, the man seeking paternity can only establish paternity by pursuing a complaint to establish paternity through a court order.
Assuming a court deems it appropriate to go forward with adjudication of paternity, pursuant to Massachusetts law, “on motion of a party and upon a proper showing,” the court shall “order the mother, the child and the potential father to submit to one or more genetic marker tests of a type generally acknowledged as reliable and performed by a laboratory approved by an accreditation body designated by the federal Secretary of Health and Human Services….” MGL ch.. 209C, section 17. It is only after a potential father has been adjudicated father can he begin to make a request for parenting time before a court, unless the mother is willing to grant him parenting time without a court order.
In other circumstances, however, that same door of opportunity to establish paternity is not available to a potential father. Section 17 further states, “If during the probable period of conception, the mother was married to someone other than the putative father, the court may order genetic marker tests only after notice” to the spouse or former spouse or deny the Motion for Genetic Marker Testing altogether.
Why would a court turn a potential father away?
While establishing paternity through the courts can be fairly simple, it can get quite complicated, contentious, and entirely frustrating. Things can quickly become complicated where the child involved has known another man as his/her father and is at an age, where introducing a new father would disrupt the child's life or create confusion. In custody matters, the courts' focus is always “the best interests of the child.” Accordingly, a judge's goal is to make decisions that benefit the child and avoid harm to the child as much as is possible.
Here is a somewhat common scenario that can cause a court to turn a potential father away from establishing paternity:
If there are two men claiming paternity and one is the child's legal father who he does not concede to the paternity of the potential father, the potential father would then have to file an affidavit with the court stating that during the probable period of conception of the child, he engaged in sexual intercourse with the mother. A court allowing a potential father's Motion for Genetic Marker Testing is dependent on the best interests of the child.
Consequently, if the court determines that allowing the genetic marker testing would be too disruptive and confusing for the child and therefore would not be in his/her best interests, it may deny the motion and dismiss the Complaint to Establish Paternity.
What should I do if I think I am the father of a child?
If you would like to establish parental rights for a child on whose birth certificate you are not listed as father and whose mother is not agreeable to modifying the child's birth certificate, pursue a Complaint to Establish Paternity sooner than later. The longer you wait to pursue an action with the court, the higher the likelihood that you will be denied the opportunity to establish paternity and parental rights.
What should I prepare myself for in my pursuit of establishing paternity?
- Be prepared for a potentially lengthy and frustrating proceeding if the mother of the child is adamant on keeping you out of the child's life;
- Be prepared to not have the parenting time you desire with the first temporary order the court enters; and
- Be prepared to pay child support.