If you are a man who fathered a child with a woman out of wedlock (even if the woman was married and she became pregnant with your child during that marriage), or, if you are a woman who had a child with a man out of wedlock (meaning with a man not your husband and you have no claim for a common-law marriage), and, if you did not have a notarized Affidavit of Paternity issued and then had it filed with the Department of Economic Security when the child was born, you will need to file a Paternity suit with the court in order to legitimize that child and receive a legal determination as to who the biological and legal father of the child is.
A man signing a child’s Birth Certificate as father, in any state, either when the baby is born or after, is not sufficient evidence to prove Paternity.
Filing a suit for Paternity is sometimes called “legitimizing a child.” What this means is that until an order is entered or a legal determination has been made as to whom the father of a child is that was born out of wedlock and/or to a man not your husband, the child is illegitimate and only a legal finding can make that child legitimate. If you are the father of an illegitimate child, and you wait too long to file a Paternity suit or an action in court, and your child ages-out above 18 years of age, you will not be able to file a suit for Paternity and legitimize your child as your biological child, unless you initiate an adult adoption after the age of 18. Further, if you do not dispute Paternity of a child, if your child was born to the marriage of another person, that child will legally be the child of the man who the woman is married to, not you. Therefore, filing a suit for Paternity is very important on many levels.
Filing a suit for Paternity is a complex process, especially if the biological mother and father of the child do not agree as to the child’s parenting time, legal decision-making, or child support. If you are experiencing issues with another parent as to the parentage of a child, it is highly recommended that you hire a qualified Paternity Lawyer or Family Law Attorney who understands paternity law and the requirements of the court as to parentage, who will assist you in court and who will ensure that the process is done correctly and that your rights are protected. We will ensure that your child has a positive relationship with both of its’ parents (especially if that child was conceived during another person’s marriage and the child’s biological father is not the husband of that marriage).
If you are a father, and if your child was conceived with a woman who is married to another man, and if she was not legally divorced when the child was born, that child’s legal father is the husband of her marriage, NOT YOU, and you will need to file to be named the legal father and the husband of her marriage, even if they later divorced, will need to be sued and served with the Paternity action in order to correct the legal presumption. It is highly recommended that you hire a qualified paternity attorney as soon as your child is born and especially if the biological mother was legally married to another person when the child was born, as this process can be an arduous, have many legal issues involved, will require proper petitions and orders to be entered, and emotions will usually flare and effect the process. Our qualified Paternity attorneys will be there to assist you and we are ready and able to handle these types of complex cases. We will ensure that you are properly named the father of your child.
The initial action to determine Paternity in Arizona, which is filed in the Superior Court of your jurisdiction in Arizona and is called a “Petition for Paternity”. Further, these cases should also include a request for parenting time, legal decision making determinations and for child support, so that the child is properly taken care of on all levels. As these types of cases involve a considerable amount of complexity, including other actions that need to be pled for in the Petition, such as additional needs, day care, medical issues, insurance, etc., it is best to retain an experienced and qualified Child Custody attorney or Family law attorney at the beginning of the process, and not when you start having issues with your case. Waiting too long will cause additional legal fees to be incurred. It will be less costly to you if it is done correctly to begin with instead of when issues rise.
If you are a fit parent and you believe that the child would benefit from equal parenting time and/or legal decision making or if you feel the other parent is not fit to have parenting time or legal decision making with the child, an experienced Paternity lawyer can assist you in making sure that the court hears your evidence necessary so that you can establish the right to have more parenting time and equal legal decision making with the child, and so that orders are entered to make sure that the proper parent has the right amount of legal rights and parenting time with your child.
In most states, Paternity can be established through an Affidavit of Acknowledgement of Paternity. It can also be established through DNA testing but you will still need a court order to establish paternity, either way.
What is a DNA test? A DNA test is genetic testing of usually two individuals. In order for a person to be a child’s biological father they would need at least a 99 percent finding of genetic probability. DNA testing results need to be submitted to the court during the Paternity suit and can cause the parties to agree to the paternity of the child in court, if there was a previous dispute as to who the father of the child really was. DNA tests are now close to 100% accurate and if there is, or was, a question as to who the father of the child is, having a DNA test performed may be the best option. If you sneak and have a test performed such as a DNA test kit, or if one of the parents of the child does not agree to a DNA test, or even if they do, you should wait for the court action and for the court to order the DNA testing, as having a test done before a court’s order is issued, may result in you having to re-test as the court may require a certain DNA test to be performed. Of course if you have a DNA test performed before proceeding to court, you can always submit that test result to the court, however, the court may make you take another DNA test at a location that notices the court of the results, and the court will still need to enter an Order of Paternity before you are legally named the child’s father.
What is an Affidavit of Acknowledgment of Paternity? An Affidavit of Acknowledgment of Paternity is a legal instrument that allows a father and mother of a child to swear before a notary that the biological father of a child is a certain person. The form is available on the state’s Department of Economic Security website. That form, after being filled out and notarized, is then filed with the Dept. of Economic Security. That form, once filled, can be used to substantiate a father’s rights as to paternity of a child and may be able to be included as a prima facia finding in your Paternity action that you are the biological father of a child if both parent’s agree (these affidavits can be challenged in court and may not be considered proof of paternity). However, that Affidavit does not establish parenting time, legal decision making, child support and insurance obligations and you will still need to present that Affidavit to the court and obtain an Order of Paternity before you are named the legal father of the child.
Therefore, in order to get these types of paternity orders entered, you will need to file a Paternity suit with the court and it is recommended that you retain proper counsel to assist you in this suit before the court. Hiring a qualified Family Law attorney who can provide you with legal advice and the necessary information that you need, may allow you to ensure that you are successful in this process and that your goals and desires are accomplished.
If you believe that you are not the biological father of a child, or you want to correct a current Paternity Order that was entered due to fraud, or if you want to challenge a paternity order or paternity ruling, even if you did not have DNA test performed initially, in most states there is flexibility, however, after a certain period of time, the courts will not allow a child to be harmed by removing its presumed father from a paternity order.
In Arizona, if you believe that you are not the biological father of a child, and an order has been entered saying you are the legal father, there are provisions that will allow you to challenge a Paternity order under certain circumstances. You will need to retain counsel in order to determine if you meet the statutory guidelines to file a Complaint in the original court that entered the original paternity order to reverse or review the order. The ruled “father” would need to provide proof to the court as to why he cannot be the father of the child, such as he was sterile or infertile at the time the child was conceived, or proof that the child’s mother was having intercourse with other men at the time of the conception, whether married or not, or that the DNA lab test was tainted or that there were other fraudulent lab results, etc. And, in Arizona, no matter if there is a basis to reverse the initial ruling of Paternity, the court has the right to NOT reverse the initial ruling, depending on the length of time that the previous order was entered, and in the best interest of the child.
If you meet the statutory requirements to file a paternity challenge before the court, during this challenge, the court you may order you to have DNA test performed with the child, even if the mother later agrees that you are not the child’s biological father. The cost of the DNA test can be imposed on you and other court costs can be imposed on you if the suit or complaint to reverse or vacate the current paternity order is found to have been unwarranted or filed by you frivolously.
If you filed an Affidavit of Acknowledgement of Paternity with the Dept. of Economic Security and if no order has been entered by a court naming a person as the biological father of a child, you may be able to rescind that Affidavit of Acknowledgment of Paternity. Again, these options are complex and require the assistance of an experienced Child Custody attorney or a Family Law attorney.
If you are a person wanting to name a biological father and establish paternity to ensure that the correct father is involved in the child’s life; challenge a current paternity order; or if you want to obtain legal and parenting time rights to a child born outside of a marriage or limit another parent’s rights and the time they spend with a child born out of wedlock, contact the qualified and experienced family law lawyers, child custody attorneys and paternity attorneys at Ayala Law Office, PC for assistance.