One area where law and culture are not congruent is the issue of paternity for children born out of wedlock. In many cases the parents of such children “know” who the father is and act accordingly (know is in quotes because sometimes the putative father’s understanding of his paternity is not accurate). For children born in wedlock the law presumes that the husband is the father. However the law has no idea who the fathers of children born out of wedlock are until there is an order of paternity. So long as the parents of such children get along there is no problem. However when they do not get along an order of paternity can protect both parents’ legal interests regarding their children.
I recently attended a temporary hearing on custody. Often these hearings occur before there has been an order establishing paternity and, since the parties are generally not disputing paternity, no one considers this issue. However, in this instance, the family court judge inquired whether there was an existing order establishing paternity. Being informed that none existed, he determined that one needed to be established as part of this hearing. He asked both parties to acknowledge that my client was the father, to acknowledge that they did not desire paternity testing before establishing paternity, and to acknowledge that if the court found my client to be the father neither party could later come back and challenge the finding. He then issued a ruling finding my client to be the father.
Typically, such a ruling would be incorporated into a temporary order. However temporary orders are intend to expire and this finding of paternity was intended to be permanent. Thus, with the opposing counsel’s and court’s consent, I drafted a separate order of paternity, which is intend to be a final order. I have already employed this procedure in a subsequent case.
Obtaining this final order of paternity is useful to both parties. Even if the case is dismissed under the 365-day benchmark, this order is intended to be final. While it is unclear whether the order would survive a 365-day dismissal, if the paternity finding is part of a temporary order it clearly would not survive such a dismissal. Further, my client can use this order to establish his parental rights without others having to know the remaining details of his case (such as visitation, support and restraints).
When paternity has not been established by marriage or prior order, obtaining a final order of paternity at the initial hearing on custody or visitation is a useful practice.
Testing is always a good idea. I’ve had cases where a Father accepted paternity and years later the mother would claim the child wasn’t his, often when the child was ten or more years old. The claim, which the courts won’t resolve since paternity has been settled by order, was very corrosive to the Father’s relationship with his children. Somethings are best killed stone cold dead.