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Unmarried Men: Request Genetic Testing Before Acknowledging Paternity

February 8th, 2018

By Scott M. Orloff

Unmarried Men: Request Genetic Testing Before Acknowledging PaternityOn November 20, 2017, in a case that significantly affects paternity rights, Pennsylvania Superior Court reversed an order issued in a Philadelphia paternity action. The Philadelphia Court of Common Pleas issued an order after the trial court received results from a court ordered genetic test. The results of the test determined the probability of paternity for father to be 0%. The Philadelphia order stated: “It is hereby ordered that defendant is not the biological father of the child [x], born[x], to mother and the paternity action is dismissed.”

On September 6, 2016, Mr. M.F. filed a motion to establish paternity along with a request for genetic testing. The petitioner, the mother and her attorney appeared for a hearing on December 6, 2016. The petitioner testified he had been incarcerated for eight years, including during the birth of the child, and he had doubts as to whether he was the biological father of the child. The mother testified there was a custody order entered between the parties in 2003 at which time petitioner was required to sign an Acknowledgement of Paternity. In granting the request for genetic testing, the trial court took into consideration the father’s eight-year period of incarceration during which time he had no custody with the child, father’s testimony of his subsequent doubts as to paternity, and the fact he filed his motion for genetic testing shortly after his release from prison.

In granting the petitioner’s request for genetic testing, over the objection of mother’s counsel, the judge told the parties “I’m going to grant the request because even if you are his biological father I think it’s best for the child to know for sure and for both mom and dad to know….My concern at this point in time is to make sure that if you are not his biological father that I think if he has any kind of medical issues in the future it’s better for him to know who his biological parents are. Okay.” The tests results came back with a 0% probability of paternity for petitioner. The mother appealed the order dismissing the paternity action after finding petitioner was not the biological father.

In Pennsylvania, a child born to a married woman is legally presumed to be the child of mother’s husband. No legal presumption exists, however, when a birth mother is not married. Married men are not obligated to take any affirmative action to be recognized as the father of their wife’s child.  Unmarried men must establish paternity before they have any legal rights or obligations with respect to a child.

Paternity can be established either by father signing an Acknowledgement of Paternity or by a court order establishing paternity. The Acknowledgment of Paternity must include the consent of the mother of the child, supported by her witnessed statement. A signed, voluntary, witnessed Acknowledgement of Paternity is considered a legal finding of paternity subject to the right of the person who signed the acknowledgement to rescind the acknowledgement within the earlier of 60 days or the date of a proceeding relating to the child. After the expiration of 60 days, an Acknowledgement of Paternity may only be challenged in court on the basis of fraud, duress or material mistake of fact which must be established by clear and convincing evidence.

The Superior court determined the trial court erred by relying on humanitarian purposes in ordering the genetic testing.  The court found that because father signed the acknowledgement of paternity and did not show fraud, duress or material mistake of fact, through clear and convincing evidence, paternity could not be challenged.

Based on this decision, before executing an acknowledgement of paternity, unmarried men should carefully consider the legal consequences of signing the form.

For more information on the consequences of executing an Affidavit of Paternity might have on your ability to obtain genetic testing, and for assistance regarding all other family law matters, please contact one of the domestic relations attorneys at Willig, Williams & Davidson.

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