Definitions: Biological and Legal Father
An understanding of the terms biological father and legal father is important to anyone dealing with adoption. When the biological father of an adopted child is still living, his rights typically must be terminated before the adoption can finalize. Similarly, fathers who were presumed not to be the father of a child might have rights that need to be addressed before the adoption can finalize.
A biological father is the man who is the biological (or natural) father of a child. This is the man whose sperm was used to conceive the child. In some cases, a man might be biologically related to a child but not the father if he and the mother conceived the child via surrogate .
A legal father is a man who is the father on paper even though he isn’t the child’s biological father. A legal father is oftentimes a man who had a relationship with the mother at the time of conception or one who was married to the child’s mother at the time of the child’s birth. The parental rights of legal fathers are often the ones that are addressed in adoption cases that are finalized by consent.
Putative fathers are men who might be the biological father of a child but who might not be the only person who has a potential claim to parentage. This could be the case if a man and woman are cohabiting and conceive a child, but the biological father doesn’t raise the child but instead allows a different man to adopt the child.
The Role and Duties of a Biological Father
A biological father will typically have the rights and responsibilities of a father, but only where he is also the legal father of the child. Establishing paternity grants the father rights including legal custody and parenting time, and imposes upon him the responsibilities of paying child support. There are important considerations that may arise when deciding whether or not it makes sense to pursue finding out who the father of a child is. There may be a financial burden upon the State if a child has no legally established father. If the State is not responsible for paying this cost, lawsuits brought by the State against a biological father to establish paternity are often for purposes of seeking custodial and parenting obligations as well as child support. For most people, the decision to establish paternity will arise out of fear that if something were to happen to the child’s mother (in death or disability) that there would be no legal way for the child to be with you and your family, especially if a biological father is a close relative of yours.
Paternity is established in New Jersey by filing a complaint in the family part of the Superior Court and have a DNA blood test performed or have both parents agree that the man is the biological father of the child. If the man is shown to be the father, the Court will establish an Order finding this to be true, whereby the father will then have obligations for financial child support and entitlement to custody and parenting time.
Standing of the Legal Father
To gain standing as a legal father, the man must have been married to the mother of the child or acknowledged paternity. Acknowledgment of paternity is the legal act of a mother and father agreeing to recognize the man as the father of the child and both signing a document acknowledging such. In some states, if the mother is not married and the father comes in subsequent to the birth and signs a form consenting to the paternity and the acknowledgement of being the father of the child, he can obtain standing to pursue visitation and or establishment of parentage.
There are other scenarios where a man may potentially be considered a legal father. The most common is if he is married to the child’s mother at the time of birth, legally separated from her or has been divorced from her for less than six months. Another scenario is if the married couple with a child later divorces and the father has not established paternity. In this case, at the time of trial, the court will allow the parties to introduce evidence to determine paternity.
If the divorced or separated father has established paternity with a child and exercised parenting time and such, it is not likely that the mother can assert that he has lost his standing. Instead, there must be a substantive change in circumstance warranting a review of the parenting time and visitation.
Once a man has been established or recognized as the legal father, he has the same legal standing as any other parent. For instance, he can request parenting time by petitioning the court. He also has the standing to seek a modification of visitation and parenting time should the need arise. In addition, fathers have the same ability as mothers to pay child support and seek child support from a birth mother should the need to do so arise.
Since there is no presumption of legitimacy of a child with an unmarried mother, a man must establish parentage through one of two ways:
As a practical matter, in most cases, setting up a child support order through the child support office is the best choice. Essentially a petition is filed once the child has been born and filed with the court. The office of child support services then conducts DNA testing establishing paternity, proceeds to calculate child support and submits a report to the court. The court will review the report and set a date for a court hearing on child support amounts. At the hearing, the judge will enter a final order for child support.
Establishing Paternity: Formal Process and Issues
In Colorado, a legal father is a man whose parentage has been established. A child born to two married individuals is legally presumed to have that man as a legal father. A child born to two unmarried individuals may have a "presumed," "legal," or "putative" father. A putative father has fathered a child but lacks the legal presumptions associated with marital parentage. The Colorado Uniform Parentage Act states that paternity can be established through marriage, birth certificate, genetic test, or court order. The Colorado Courts recognize two primary methods for establishing paternity: informal mechanisms agreed to by all parties (commonly known as an affidavit) or legal proceedings initiated by one party without the consent of others. The legal mechanisms are referred to as a "paternity action" and may include DR405, 406, 409, 413, 414 and 415. Demanding genetic testing by one party is the most prevalent legal mechanism employed in Colorado, but a Colorado Court cannot compel a man to provide a genetic sample until a paternity proceeding is pending before it. A paternity proceeding is not commenced until a complaint is filed by a mother, father or other interested third party. Of these legal actions, DR409 is designed to resolve child support disputes in cases where the parents have been divorced, separated not proceeding forward with the DR. This proceeding can only be commenced once the parties spend 180-days living apart before reconciliation. Any and all of these paternity proceedings can be contested where the named respondent denies paternity or raises a claim that the individual identified is not competent to parent.
Effects on Custody Rights and Financial Obligations
The determination of paternity can have a significant impact on decisions regarding child custody and child support. Even in cases where paternity is not in dispute, the concept of legal versus biological father can have important implications. Certainly, if there is a dispute about who is or is not the legal father, or who may be considered the biological father, it is essential that the issue is resolved prior to addressing other important matters such as child custody and child support.
Child custody refers to the court-ordered right of a parent to "retain physical possession of the child or to establish the terms and conditions of the legal duty to provide for the care , custody and welfare of a child." (N.J.S.A. 9:1-28). Order by a court specifying custody of a child can be joint custody or sole custody, and may specifically define physical and legal custody.
Child support orders are codified under N.J.S.A. 2A:34-23a. Child support is determined in New Jersey by a lengthy calculation. The parties’ incomes as well as other factors are analyzed using statutory guidelines in order to reach a calculation of how the amount of child support should be apportioned between the parties.
Increased child support can result from college expenses, health insurance, child care, education expenses and the like. Similarly, child custody may be affected by the child’s need of special educational, medical or psychological assistance.
The Function of a DNA Test
DNA testing plays a crucial role in identifying a child’s biological father. In many paternity cases, the putative father is required to submit to DNA testing to confirm or disprove his biological relationship with the child. Courts will usually order the testing, and the testing is generally covered by the party seeking the test.
There are two types of DNA testing: non-invasive and invasive. With non-invasive testing, the alleged father and the mother of the child both give samples. The child simply swabs the inside of their cheek and the results will reveal if the two samples are biologically related. Invasive testing requires a blood draw from the mother, the child and the alleged father.
DNA testing will be most accurate when two things happen. First, it is important for the alleged father to be aware of the test so that he can prepare for it mentally, as the results that the testing produces might determine the legal relationship he has with a child. Second, the test should be completed at an accredited laboratory, it should be properly documented that the samples came from the correct individuals, and the sample cannot be tampered with.
Examples in which Biological and Legal May be Different
In Texas, the law regarding biological and legal fathers often only comes up in the context of a child who has been born "out of wedlock." While this is not the only situation where biological and legal fathers may be different, it is one of the more common. A child born to unmarried parents has no legal father at birth, and subsequently, paternity must be established.
Being a legal (as opposed to biological) father is simply a matter of being named as a father on the birth certificate (if the parents sign the birth certificate) or being adjudicated as the legal father in a paternity suit. A father adjudicated to be legal is legally the father regardless of whether he is the biological father. One area where biological and legal fathers overlap concerns a couple who are married but with one questionable area about whether the husband is the father of the child born during the marriage. The courts will apply the "presumption of valid marriage" to determine whether the husband is also the biological father of the child . If the husband is not the biological father of the child, then he cannot be a father.
For example, in the case of In re D.L.R., No. 11-11-00018-CV, 2012 WL 896613 (Tex. App. — Eastland Mar. 15, 2012, pet. dism’d w.o.pub’d) (mem. op.). In this case, a putative father filed a paternity suit. At the time of the suit, the wife was still alive and the husband was not a putative father but, instead, the presumed biological father. Shortly before her death, the wife signed an affidavit naming the putative father as the biological father. The appellate court held that the putative father did not have standing to bring a paternity suit and that the husband was not the biological father regardless of the affidavit signed by the wife. All of these situations depend on the facts of the case. There are situations where the biological and legal fathers are the same person and still other cases where they are easily distinguished.
