Tuesday, 06 April 2010 05:36

Lately, More Men Are Going To Court To Prove They Are Fathers

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"Dave" was stunned, crestfallen. The judge in his divorce ruled that he could no longer see or parent his 10 year-old daughter. Ever. No shared custody, no visitation, no contact.

Was he a terrible dad? Quite the contrary. By all indications, Dave was loving and attentive. The problem? Dave wasn't the father of the little girl he had spent 10 years helping to raise. As Dave suspected, his wife had an affair early in their marriage and their child was the product of that affair. Dave was losing not only a wife, but his only child.

This story highlights a trend in my practice as a family lawyer. There has been a dramatic increase in the number of men seeking to prove they are the fathers of the children in their lives. Remarkably, most are trying to insure that they are granted their full parenting rights, rather than nullify a child support order entered against them.

Why this upsurge in men eager to prove paternity? I am not sure, but it is a welcome trend. Perhaps it is a sign that men are taking their roles as fathers more seriously. Or, maybe it's a reflection of the greater independence of women in these modern times, with the result that woman are more willing to "go it alone", more stubborn about keeping the father out of the child's life once the relationship has ended.

With the way human reproduction works, there is rarely controversy about the mother's identity. The birth certificate states who is the mother. But, dad's identity can be subject to question, even in seemingly stable relationships. When that question arises, the only conclusive determination is through testing matching up the DNA characteristics of child, mother and father.

Under law, a child conceived and born during a marriage is presumed to be fathered by the husband. However, if either husband or wife claims to the contrary, the judge in their divorce is obligated to determine paternity before concluding the case. Further, if a woman seeking a divorce is pregnant, the judge will delay the divorce until paternity can be established after the child's birth. In both situations, the judge is insuring that all custody, support and parenting issues are accurately resolved before the case leaves his/her control.

However, the law makes no presumptions about children born outside of marriage. Typically, this is not a problem so long as the couple remains together. But, if the couple separates, the child will usually remain with the mother, with the father providing financial support. If not provided voluntarily, the mother can petition a judge to order the man she names as the father to pay support.

Paying support is no guarantee that the court will automatically provide for that man's parental rights as the father, even when that court has ordered him to pay support, if the mother objects. Mothers can become very selfish about sharing parenting, particularly when the father has initiated the break up. She withholds the child to vent her anger, or resents dad's "reappearance" on the scene after being absent for several months or years. The mother may even claim that the man paying support is not the actual father, or that she is not certain who the father is.

The court will respect the mother's claims until the father petitions the court to determine the paternity of the child. But, should testing determine that he is the father, then he can be granted the full spectrum of parental rights: decision-making, scheduled time, and child support.

Cynthia M. Fox is a Missouri attorney and mediator located in Clayton, MO. Her web site is www.foxfamilylawyers.com She has pioneered a new approach to divorce called The ConstructiveDivorce
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