Finding the Legal Father
No - the process of legally establishing a father is not as simple as you may think it is at first glance. There are several ways to accomplish becoming (or UN - becoming) a father pursuant to the law of Tennessee. Surprisingly, in my days as a juvenile and family attorney, I have seen some courts err in their determinations regarding legal fathers. In the world of dependent and neglected child, many times two fathers are named in a petition - a "legal" father and an "alleged" father. Here is my analysis, method by method, of establishing paternity (a/k/a fatherhood).
1. Marriage
It would seem that the fact of the mother being married at the time of birth greatly simplifies the process of establishing paternity. If you are one of my fellow attorneys checking out this blog, give me a call. I will send you the statutes of reference for this post.
The law in Tennessee only presumes that the husband of the mother is the father of her newborn child. This applies if the mother is married when the child is born or if a marriage has been terminated within 300 days prior. And this legal presumption is subject to rebuttal.
It is the birth certificate that determines a legal father outside of any court proceeding. Not a marriage certificate. The statute on point states that, if the mother is indeed married to the natural father of the child, then that natural father is listed as such on the birth certificate.
If a mother delivers a child and no father is listed on the birth certificate, she may later marry the father. The two parents then have the legal option of filing a sworn document with the state registrar along with their marriage certificate to legitimate the child and to list the husband as the father on the birth certificate.
I have seen situations where an estranged wife becomes pregnant and where the man thought to be the natural father of the newborn executes a Voluntary Acknowledgment of Paternity (VAoP) and is listed on the birth certificate and therefore legally established as a father. Keep reading for more details about VAoPs in Tennessee.
1. Marriage
It would seem that the fact of the mother being married at the time of birth greatly simplifies the process of establishing paternity. If you are one of my fellow attorneys checking out this blog, give me a call. I will send you the statutes of reference for this post.
The law in Tennessee only presumes that the husband of the mother is the father of her newborn child. This applies if the mother is married when the child is born or if a marriage has been terminated within 300 days prior. And this legal presumption is subject to rebuttal.
It is the birth certificate that determines a legal father outside of any court proceeding. Not a marriage certificate. The statute on point states that, if the mother is indeed married to the natural father of the child, then that natural father is listed as such on the birth certificate.
If a mother delivers a child and no father is listed on the birth certificate, she may later marry the father. The two parents then have the legal option of filing a sworn document with the state registrar along with their marriage certificate to legitimate the child and to list the husband as the father on the birth certificate.
I have seen situations where an estranged wife becomes pregnant and where the man thought to be the natural father of the newborn executes a Voluntary Acknowledgment of Paternity (VAoP) and is listed on the birth certificate and therefore legally established as a father. Keep reading for more details about VAoPs in Tennessee.
2. Voluntary Acknowledgment of Paternity
A VAoP may be executed at the hospital at the time of birth or at a later time by appointment at a local health department or child support office. It is a legally binding document that places a father on the birth certificate. It is subject to rescission without court action within sixty days of execution by the filing of a sworn affidavit with the registrar or at a later time with an expensive and cumbersome lawsuit to rescind it. In other words, if you are in doubt as to your fatherhood, do NOT sign a VAoP.
3. Court action - DNA testing or affirmative agreement by parents
Statutes in Tennessee relax the Rules of Evidence somewhat in allowing accredited laboratory tests to be admitted into evidence with an affidavit documenting chain of custody of the specimen for the purpose of establishing paternity. Court action to establish a father may be initiated by a child if the child is over the age of eighteen, by the guardian or next friend of a child, by the child's mother, by a man claiming to be the child's father, or by the Tennessee Department of Human Services ("DHS") (child support collection agency). The statute of limitation on such court action to establish a father is the child's 21st birthday.
Lab testing can be expensive, but it is reliable. Courts may order such testing upon request and order the requesting party to fund the test. Costs may be reallocated as a part of an order or judgment at the conclusion of the case. If DHS requests DNA testing, it may later recover the costs from a person established to be a parent by the testing process. Statutes establish evidentiary thresholds of 95% and 99% probability of parentage. But I have never seen a lab test with below 99%.
The law also allows courts to enter an order of parentage (a/k/a an order establishing a father) upon the affirmative agreement of the parents. For fathers who are "on the fence" about whether they actually are the natural father should not affirmatively agree that they are the father of any certain child or children. They should request DNA testing.
A VAoP may be executed at the hospital at the time of birth or at a later time by appointment at a local health department or child support office. It is a legally binding document that places a father on the birth certificate. It is subject to rescission without court action within sixty days of execution by the filing of a sworn affidavit with the registrar or at a later time with an expensive and cumbersome lawsuit to rescind it. In other words, if you are in doubt as to your fatherhood, do NOT sign a VAoP.
3. Court action - DNA testing or affirmative agreement by parents
Statutes in Tennessee relax the Rules of Evidence somewhat in allowing accredited laboratory tests to be admitted into evidence with an affidavit documenting chain of custody of the specimen for the purpose of establishing paternity. Court action to establish a father may be initiated by a child if the child is over the age of eighteen, by the guardian or next friend of a child, by the child's mother, by a man claiming to be the child's father, or by the Tennessee Department of Human Services ("DHS") (child support collection agency). The statute of limitation on such court action to establish a father is the child's 21st birthday.
Lab testing can be expensive, but it is reliable. Courts may order such testing upon request and order the requesting party to fund the test. Costs may be reallocated as a part of an order or judgment at the conclusion of the case. If DHS requests DNA testing, it may later recover the costs from a person established to be a parent by the testing process. Statutes establish evidentiary thresholds of 95% and 99% probability of parentage. But I have never seen a lab test with below 99%.
The law also allows courts to enter an order of parentage (a/k/a an order establishing a father) upon the affirmative agreement of the parents. For fathers who are "on the fence" about whether they actually are the natural father should not affirmatively agree that they are the father of any certain child or children. They should request DNA testing.
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