Establishing Paternity Generally
This section will address the issue of establishing a parent-child relationship. This is almost universally an issue of establishing that a particular man is the father of a particular child. Once there is a parent-child relationship established, the parent has certain rights, duties and obligations as to the care and custody of the child. Often, the issue is one of a mother wanting to establish paternity in order to have a child support award issued which will obligate the father to help support his child. On the other hand, fathers often want to establish paternity so that he may have the right to custody or visitation.
In many cases, there is no issue as to who the father of the child is, as the parents were married when the child was born, the husband was listed on the birth certificate and is presumed to be the father of the child. However, when a child is born to an unmarried mother, the issue can be much more complicated.
The parent and child relationship between a child and a child's natural mother may be established by simply submitting proof of her having given birth to the child (e.g. birth certificate). For the mother, it is simple, if she gave birth to the child, then she is the parent of that child and has all the rights, responsibilities and obligations that come with being a parent in Ohio.
The parent and child relationship between a child and the natural father of the child may be established when it is needed most simply by an acknowledgment of paternity as provided by the statute. Generally, there are a different ways that paternity can be established under Ohio law, with those commonly being:
Voluntary “acknowledgment” by the father (easiest way if mother & father are in agreement)
Through an administrative procedure (discussed below)
Through a court proceeding brought by the mother, the alleged father, or the child itself in some situations
Presumptions of Paternity
Before we get to the various ways to establish paternity, we should first discuss the fact that very often there is no need to take steps to establish paternity at all. There are certain presumptions in Ohio family law that attempt to establish paternity without any affirmative action needed by the mother or father. The law will simply presume that a man is the father and impose certain obligations on the father without affirmative proof the man is the father. Probably the most common presumption is if the child is born to a married woman. This presumption is discussed in the next section.
Presumption: Child Born to Married Women
The law presumes that a child born in wedlock is a legitimate child and that the husband is the father. This is the easiest and simplest manner that fatherhood is established. Believe it or not, this presumption is in force even if the women committed adultery during the marriage. It should also be noted that if a child is born after the marriage is terminated through divorce, dissolution or annulment, the child is still considered to be legitimate as long as the child is born within 300 days of the termination of the marriage (the date the final decree is filed).
A presumption under the statute that a child conceived in wedlock is legitimate can be rebutted by clear and convincing evidence that the women’s husband is not actually the father of her child. The presumption is overcome by clear and convincing evidence (such as blood or other DNA testing) that satisfactorily eliminates the husband as the father of the child.
The presumption may also be rebutted upon proof that the husband and wife did not engage in intercourse during the time in which the child must have been conceived. However, if there is evidence in a proceeding that a husband and wife had sexual relations during the time the child must have been conceived, the child is presumed to be legitimate and the husband is the father.
Note: A man who marries a woman while she is pregnant is presumed to be the natural father of any child born from such pregnancy. However, this presumption of paternity can again be rebutted by clear and convincing evidence. Basically, if a man marries a woman while she is pregnant, it is a presumption that her children are also his children when they are born during the course of the marriage. Certainly one common motivator for marriage is the fact that the women is pregnant. This particular rule simply recognizes this fact as a matter of policy.
Note: That paternity will still be presumed for a child born to a couple that attempted a valid marriage, but for some reason the marriage can be determined invalid under state law. Basically, if a man and a women attempt to marry, but the marriage doesn’t follow state laws and is determined invalid, the “husband” of the invalid marriage is still presumed to be the father of a child if it is born during the invalid marriage, or within 300 days of the invalid marriage being terminated.
Presumption: Acknowledgment Not Yet Finalized
We will address acknowledgment of paternity in another section, but first you should know that another presumption of paternity arises when a father has filed an “Acknowledgement” of paternity, but it has not yet been finalized. During this pendency period, the man that signed the acknowledgement is presumed to be the father of the child, and this presumption can only be rebutted by clear and convincing evidence. In contrast to this presumption period, once an acknowledgment is finalized, paternity is no longer presumed but is considered “determined”. Once paternity is determined, it can no longer be rebutted at all by the father. However, an acknowledgment can be rescinded under statute and when this happens the paternity status falls back to only being presumed under law. Once paternity is only presumed again, that presumption can then be rebutted by clear and convincing evidence.
There are other forms of paternity presumptions under Ohio family law. However, because these presumptions mostly deal with the very narrow categories of situations that involve artificial insemination and embryonic donation births, we will not discuss them in this article. If you have a paternity case involving artificial insemination or the use of embryonic donation, please call our office to discuss the generalities.
Parties that can bring an action to Establish Paternity
If the law does not presume paternity, and one or more parties must take affirmative action to establish paternity, there are a few different mechanisms available to those with standing to bring such action. Under Ohio law, only the following parties have standing to bring an action to establish paternity
The Child (or child’s representative)
The man claiming he is the father of the child (or his representative)
The Child Support Enforcement Agency, but only if the mother or putative father are on public assistance
Anyone providing support for a child born of an unmarried minor girl may bring an action to establish that a minor male is the father of the child (think parents of minor mother!)
Note: A man that has been presumed to be the father of a child under one of the statutory presumptions can bring an action to prove he is not the father. He must put forth clear and convincing evidence, including DNA evidence, that he is not the father. Once he successfully establishes he is not the father of a child, he is no longer obligated to support the child, nor does he have any rights to custody or visitation.
Note: There are statutes of limitations on bringing paternity actions in the juvenile court. An action to establish paternity cannot be brought more than 5 years after the child achieves the age of 18. In essence, a party has until the child is 23 to bring the action. Often, a child will want to establish paternity even though he is an adult in order to inherit from the putative father.
Also, a common-law action for “necessaries” brought in the court of common pleas by a married woman alleging that she has delivered an illegitimate child by a man other than her present husband, must be brought within 4 years after the birth of such child.
Specific Ways to Establish Paternity
As previously noted, there are a few avenues a party may take to establish paternity (or to establish the lack of paternity). Basically, a party with standing can:
Bring an action in the juvenile court, court of common pleas, or even a probate court (in some circumstances) to establish paternity, or
Can request an Administrative Determination from CSEA, or
The parties can voluntarily acknowledge paternity by filing the appropriate affidavit
The mother or putative father may bring an action with the local County Child Support Enforcement Agency (CSEA) to establish paternity. The CSEA will then order all parties to submit to genetic testing and will issue an administrative paternity order based on the outcome of the genetic test. For a paternity order to be established, the test must show at least a 99% probability of fatherhood. The CSEA can have anyone not cooperating with the genetic testing found in contempt of court. In other words, if the father or the mother fails to submit to genetic testing when a request has been filed, they can be found in contempt of court. If the mother fails to submit the child for testing, she can be found in contempt for that failure as well. After all, the agency will need to conduct genetic testing of the child in order to determine who the father is.
An agency officer will issue a determination of the existence or non-existence of a father-child relationship. Any party that disagrees with the agency’s determination must appeal this to the juvenile court within 30 days of the date that the agency made its determination.
Acknowledgment of Paternity
The voluntary acknowledgment process refers to completion of a form known as an "Acknowledgment of Paternity Affidavit." You can complete this at the hospital when your child is born, before both parents leave the hospital. It can also be completed at your county's CSEA or your local Vital Statistics Registrar. This is the simplest way to establish paternity. Simply complete the form and, unless the acknowledgment is rescinded, the paternity is established and may not be rebutted.
According to that UPA, when an acknowledgment of paternity has been filed pursuant to statute and has not become final pursuant to statute, the man who signed the acknowledgment of paternity is presumed to be the natural father of the child and he assumes the parental duty of support with respect to the child. If the natural mother and alleged father of a child sign an acknowledgment of paternity affidavit with respect to that child at the office of the local registrar, the local registrar must provide a notary public to notarize the acknowledgment. The local registrar must send a signed and notarized acknowledgment of paternity to the office of child support in the Department of Job and Family Services. The local registrar must send the acknowledgment no later than 10 days after it has been signed and notarized. If the local registrar knows a man is presumed by statute to be the father of the child and that the presumed father is not the man who signed or is attempting to sign an acknowledgment with respect to the child, the local registrar must not notarize or send the acknowledgment. Basically, the presumption controls and the party would have to file an action to show by clear and convincing evidence that the presumption is rebutted.
After an acknowledgment becomes final, a man presumed to be the father of the child who did not sign the acknowledgment, either person who signed the acknowledgment, or a guardian or legal custodian of the child may bring an action to rescind the acknowledgment on the basis of fraud, duress, or material mistake of fact. The court must treat the action as an action to determine the existence or nonexistence of a parent and child relationship. Such action must be brought no later than one year after the acknowledgment becomes final. A statute provides for an acknowledgment of paternity filed with the office of child support to be rescinded under specified circumstances.
File a Complaint for Paternity in the Court
If the mother or father wants to establish paternity (or lack of paternity), he or she can file in the court that has proper jurisdiction to establish paternity. The Uniform Parentage Act (UPA) provides for the establishment of the parent and child relationship and is the general statute governing this issue. A mother or father wishing to establish the father’s paternity must proceed in a manner prescribed under the UPA. It should be noted that the UPA only applies if the child was conceived in Ohio. If a child is conceived in any state other than Ohio, the mother cannot utilize the UPA to bring her action to establish paternity.
Normally, because the parents are not married, the proper court under the UPA will be the juvenile court, but there are other instances where the court of common pleas or even the probate court would be the proper court. For instance, if a complaint for divorce, dissolution, or legal separation has been filed in a court of common pleas, that court has original jurisdiction to determine whether the parent and child relationship exists between the father and a child. If the father is diseased, then the action can be brought in the probate court in which the alleged father’s estate is probated.
The action should be brought in the county in which the child resides, the mother resides, or the putative father resides. Sometimes, the proper county court will be the one in which the local Department of Job and Family services is located, if the DJFS is providing services for the child. All necessary parties need to be served with notice of the action. Necessary parties include: the mother, all presumed fathers under the statute, and all alleged fathers. Each necessary party has a right to participate in the proceedings.
What Happens after paternity has been established
When a man is presumed, found or declared to be the father of a child under the Uniform Parentage Act, or if the father has acknowledged the child as his child in an acknowledgment of paternity, and the acknowledgment has become final, upon submission of documentary evidence of such facts to the Department of Health, the Department must issue a new birth record. The new birth record must have the same overall appearance as that which would have issued if the parents had married before the child's birth. Once the new birth record is issued, the original ceases to be a public record.
The Department of Health must forward a copy of the new birth record to the registrar of vital statistics in the district where the child was born. The original, and all index references to it, must be destroyed, and the new certificate substituted in the same manner as others in the registrar's possession.
Person “In Loco Parentis”
In general the term "In loco parentis" means that there is a relationship which a person assumes toward a child that is not his own. The person holds the child out to the world as a member of his family and actually owes the child duties as a parent. A person standing in loco parentis to a child is one who put himself in the position of lawful parent assuming obligations incident to the parental relation, without going through the formalities necessary for a legal adoption. When a person accepts custody of a child, that person stands in loco parentis to the child, accepting all rights and responsibilities that go with that status. The key factors of the "in loco parentis" relationship are intentional assumption of certain obligations by the person standing in loco parentis to the child, especially the obligation of support and maintenance of the child.
Where a parent stands in loco parentis to a child, the rights and liabilities arising out of that relation are substantially the same as between a natural or adoptive parent and a child, although they may be enlarged or restricted by legislative enactment. While that relationship continues, the party in loco parentis is bound for the maintenance, care, and education of the child.
A stepparent, by virtue of that relationship alone, does not stand in loco parentis to a stepchild. The extent of the relationship is dependent in each case on what the stepparent has assumed to do and has actually done with respect to that child. The question is primarily one of intention,
to be determined in the light of the circumstances peculiar to each case. The bottom line is that merely being a step-parent does not make that step-parent a person in loco parentis to the child. A stepparent who voluntarily receives the child into his or her family and treats the child as a member thereof places himself or herself in loco parentis to the child, but this is not always the case in every family setting.
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