Articles

Paternity - Part I

In my last column I discussed some legal aspects of a paternity lawsuit from the point of view of an alleged father. This week I am going to comment on a number of issues from the point of view of a mother of a child who was born outside of a marital relationship.

A lawsuit to determine the paternity of a child is normally brought at the request of the child’s mother. However, a paternity suit (under the Uniform Parentage Act, RCW 26.26) may also be brought by the child, the child’s guardian or personal representative, any man claiming to be the father, the state, or any other interested party.

You may be interested to know that there is also such a thing as a maternity suit – a lawsuit which is filed to establish the existence of a mother-child relationship.

A paternity suit can be filed at any time, even after the death of the alleged father. Most paternity suits are filed within several months after the birth of the child. The lawsuit must name the child, the natural mother, and each man who is alleged or presumed to be the father. If the child is a minor at the time the suit is file, the child must be represented by a Guardian Ad Litem appointed by the court. A guardian makes written recommendations to the court with regard to custody and visitation. Neither the mother nor the father can act as the Guardian Ad Litem.

After the petition has been filed, all necessary parties have been served, and the Guardian Ad Litem has submitted a report to the court, a hearing is scheduled to take testimony if the parties cannot agree on a Parenting Plan and Child Support Order. If the child has received public assistance at any time, the state must be notified and be allowed to fully participate in the lawsuit. The Attorney General’s Office will actively participate in such a case to recover any public assistance paid to the child. In those such cases, the mother will have been caring for the child, and the state will be seeking reimbursement of public assistance from the natural father. The mother and father cannot agree on the amount of current and back support without giving the state an opportunity to be heard by the court. Any order entered by agreement of the mother and father which seeks to eliminate or reduce back or current child support while the child is on public assistance will not be binding on the state.

What happens if the father claims that the mother misled him or was negligent about the use of contraception? Basically, this is not a defense against a claim for child support under a paternity action. In addition, the courts have specifically held that the father of such a child cannot sue the mother to recover his child support payments from her, even is she is shown to have lied or been negligent about the use of contraception.

Oftentimes, a paternity suit is actually essential to the stability and well being of the child. Many couples in the modern world live together and have children. Oftentimes, these relationships are structured informally by the parties, both with regard to issues of custody and child support. However, in the long run, it is almost always best for the child to have a legal determination of paternity. In a paternity case, the court also issues orders deciding who has custody, what visitation will be allowed, who makes major decisions in the child’s live (such as education, religion and medical care). The court will also enter an order establishing a current amount of child support which must be paid, the total amount of back support (since birth) which has not been paid, and a payment plan to make up for unpaid back support. This is true whether or not any public assistance money has ever been paid.

In some cases, the issue of paternity is first raised after the mother marries another man. If a woman has a child outside of marriage with Mr. "A" (the father), and then several years later marries another man, Mr. "B", she oftentimes wants to have her husband adopt the child. In order to do that, the natural father has to be legally established as the father, and his rights have to be relinquished or extinguished in a very precise legal fashion. Failure to properly notify the natural father of the adoption may cause the adoption to be successfully attacked legally at a future date.

Other issues relating to adoption will be discussed in a future article.