Paternity

Paternity

When children are born to unmarried parents, making the biological father the legal father is not automatic. If the child's mother is married when the child is conceived or born, her husband is automatically the legal father.

There are two ways to become the legal father:

  1. By signing an Affidavit of Parentage. An Affidavit of Parentage is a legal agreement making the man who signs it the legal father. Once there is a signed Affidavit of Parentage, either the mother or legal father may file a Custody Case with the court asking for custody, child support and parenting time.
  2. By filing a Paternity Case. Either the mother, the man who believes he is the father or the state, if the mother or child receives public benefits, can file a Paternity Case with the court asking that the man named in the case be declared the legal father. In a Paternity Case either the man can agree that he is the legal father or DNA test results will be used. Custody, child support and parenting time can be decided in a Paternity Case.

Filing a Paternity Case

Either the mother, the man who believes he is the father or the state, if the mother or child receives public benefits, can file a paternity case with the court asking that the man named in the case be declared the legal father. A paternity case is a lawsuit that requires filing of certain paperwork (pleadings) with the court, payment of a filing fee, formal delivery of the pleadings to the other party (service) and following the court process to the end of the case (Order of Filiation/Paternity and Order for Custody, Support and Parenting Time).

In a Paternity Case either the man can agree that he is the legal father or DNA test results will be used. Child support will be decided in a paternity case. Custody and parenting time can be decided in a Paternity Case.

A mother may make a request for child support through the Office of Child Support. If there is no legal father, the state will begin a Paternity Case. The case is filed by the Prosecutor but filed in the mother’s name to have the court enter a paternity and child support order.

Paternity Orders

Once a paternity case is filed with the court, the first step is to determine whether the man involved in the case is the father. The mother and the man can agree that he is the legal father. This is paternity by consent. If the man fails to respond to the case in the time allowed, he will be found to be in default and ordered to be the legal father. This is paternity by default. Finally, DNA testing can be done to determine if the man involved in the case is the biological father. If the test results show he is the biological father, then the court will determine that he
is the legal father. The court order determining paternity is called an Order of Filiation or Order of Paternity.

Orders for Custody, Child Support and Parenting Time in a Paternity Case

Until a man is determined to be the legal father of a child, the court has no power to order custody, child support or parenting time for him or from him. Once the man is determined to be the father, the court must determine and order child support. Once a paternity determination is made, the court can consider legal and physical custody and parenting time for the father. It may be necessary for the father to ask the court by filing a separate Motion for custody and/or parenting time after the Order of Filiation or Order of Paternity is filed.

Filing Fees and Waiver of Filing Fees

The court filing fees for a paternity case filed by the mother are currently $255. There is no filing fee when a man who believes he is the father of a child files a paternity case or when the prosecutor brings a paternity case. There is a $20 filing fee for a Motion for Genetic Testing if filed by the mother. These court fees can be waived automatically when the person filing for paternity receives public benefits (has a DHS case number) or when the person filing for paternity applies to the court for a waiver when, based on their income and expenses, they cannot afford the filing fees.

For Informational Purposes Only: This summary is provided for basic informational purposes only. It is not legal advice. For legal advice about your situation, you must talk to a lawyer.
Forms & Case Packets
  • Download a FREE “Getting Started Checklist” for Paternity
  • Case Packets (forms & instructions) for Paternity are available at the Legal Assistance Center for $20. Cash only.
  • Additional free and low cost forms, including free Motion forms, are available at theLegal Assistance Center.
Additional Resources
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