Paternity / Legitimation

A child born out of wedlock is a vital concern to the court and to the parents such that several statutorily schemes have been developed to protect the child and provide certain rights to the mother as well as the putative (biological) father. The mother to the child, the child, the Department of Human Resources, a third party who is caring for the child or even the father can bring a paternity suit to establish the paternity of the child, and once the determination is made, the father can be ordered to pay child support, even retroactively, as well as medical expenses of the child and mother while giving birth. Even after the parentage has been established, the father is still not entitled to visitation or custody of the child unless he seeks to legitimate the child, generally not available in a paternity action unless he files to legitimate in that action. It can be seen, therefore, that prior to his legitimation action, he has no legal rights to the child or to visit with the child. In a paternity action, the court may order genetic testing, which has become very precise. The naming of the father on the child’s birth certificate, which must be by consent of both parties, or executing an acknowledgment of legitimation does not provide any further rights to the father.

It is in the petition to legitimate that the putative father will gain parental rights commensurate with those of a father who is married to the mother, or marries the mother after the child is born, including the rights of inheritance. In his petition, the father must still prove he has not abandoned his opportunity interest to have a relationship with the child, and that it is in the best interest of the child that he be declared the father for all purposes. Once again, genetic testing may be ordered.

A further concern surrounding the rights of the father is the potential for losing his parental rights, many times sought in an adoption proceeding. Once a petition to terminate his parental rights is filed, the father must file to legitimate or his rights will be terminated. The issue of the father’s taking an interest in developing a relationship with the child is paramount, as well as filing in the putative father registry. The rights of a putative father should be asserted at the earliest opportunity, and many fathers will delay taking action while the mother is authorizing some contact between the father and child. It is when the mother denies this time altogether that the father surely should take action if he wants to be a part of his child’s life, even if he is otherwise financially supporting the child. Only after seeking to enforce his parentage will he have extensive rights with the mother.

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