DNA tests can conclusively tell us whether someone is the father of a child – but, what happens if you don’t get a DNA test done before the court says you’re the father?
Once paternity is established by the court, it is difficult to change that finding – when DNA testing is done that shows the father is not the father, the court’s preference for finality and the best interests of the child might still make it an uphill road to change the finding of paternity.
When does it matter?
If you discover that you are the father of a beautiful young child, but you are barred from participating in their life because someone else was legally determined to be the father, it matters.
If you are paying child support for a child you thought was yours, but you later discover that the mother lied to you about paternity, it matters. What if you don’t have a meaningful relationship with the child and you discover that the mother of the child lied to get child support from you? Will the court allow you to stop paying?
How is Paternity Established in South Carolina?
In most cases, a father is listed on the child’s birth certificate and paternity is never challenged – if the parents separate or were never married, the only question in a child support action may be how much the father (or mother) pays.
How else can paternity be established?
Verified Voluntary Acknowledgment
SC Code Section 63-17-50 says that a “verified voluntary acknowledgment” of paternity is enough for the court to make a legal finding of paternity – as a matter of fact, 63-17-50 (D) says that a signed affidavit is a legal finding of paternity even if the court does not ratify or approve the acknowledgment.
What if you sign an affidavit of paternity and later discover that you are not the father? Can you “undo” the finding of paternity?
There are two circumstances where you can challenge a verified voluntary acknowledgement. First, you can “rescind” the affidavit within 60 days after you signed it or at any time prior to a court proceeding for child support.
But, after child support has been established, it becomes more difficult – you can later challenge the verified acknowledgment in court if you can prove:
- Duress; or
- Material mistake of fact.
Once paternity has been established in court and child support has been ordered, you may have an uphill, but not impossible, battle to “undo” the court’s previous findings.
SC Code Section 63-17-60 lists the types of evidence that a court will consider when determining paternity, including DNA evidence.
Evidence of genetic testing “from physicians, agencies, hospitals, laboratories, or other qualified testing facilities,” when the chain of custody of blood samples is verified, is admissible without laying a foundation or calling expert witnesses – unless the testing is challenged by filing a motion at least 20 days before the trial date.
How is DNA used in paternity actions?
- Any party has the right to demand additional testing at their own expense;
- Refusal to submit to a DNA test can be considered as evidence by the Court;
- Where testing shows a statistical probability of paternity, a probability of 95% or higher creates a rebuttable presumption of paternity;
- The Court can order DNA testing even if the parties don’t ask for it – for example, if a male witness testifies that he may be the father, the court can order DNA testing of the witness. If the results exclude the witness as the father, the testimony is stricken from the record and disregarded.
What Other Evidence Can Be Used to Establish Paternity?
SC law also allows the Court to consider:
- A foreign paternity determination from another state or country’s court, which creates a “conclusive presumption” of paternity;
- A birth certificate with the signature of mother and father creates a “rebuttable presumption” of paternity;
- Expert testimony regarding the time of conception and gestation period;
- Testimony of a husband and wife as to “marriage and parentage;”
- Physical characteristics and similarities between the child and the possible father; or
- Any other evidence that the Court finds is relevant and admissible.
When Can I File a Paternity Action in South Carolina?
There are a number of situations where you may want to file an action in the family court to determine or challenge paternity.
Two examples are: 1) You are a mother who wants to force the child’s father to provide support for the child; or 2) You are not the child’s father, do not have a relationship with the child, and do not believe you should be forced to pay child support for someone else’s child.
Smith v. Doe – Can I Force an Adult Child’s Father to Take a Paternity Test?
With some exceptions, child support obligations end when a child reaches adulthood. What happens if the child is a mentally handicapped adult, and the father does not provide support?
In Smith v. Doe, in 2005, the SC Supreme Court allowed the mother of a 34-year-old mentally handicapped child to bring a child support action and held that the action was not barred by the statute of limitations.
When a child is so physically or mentally disabled that the child cannot support himself or herself, the parent’s duty to support the child continues beyond the child reaching the age of majority. Riggs v. Riggs, 353 S.C. 230, 234-35, 578 S.E.2d 3, 5 (2003). When the disability prevents the child from becoming emancipated, the presumption of emancipation upon reaching the age of majority is inapplicable. Parker v. Parker, 230 S.C. 28, 31, 94 S.E.2d 12, 13 (1956).
Even when the disability is not diagnosed until after the child turns 18, a parent’s support obligations continue – there is no statute of limitations on a child support action when a child is incapable of being emancipated. Based on the results of the DNA test, the Supreme Court upheld the family court’s child support order.
If I Acknowledge Paternity, Can I Challenge it Later?
In Ashburn v. Rogers, last year the SC Court of Appeals reversed a paternity determination more than 10 years after the alleged father acknowledge paternity.
Although SC Code Section 63-17-50 allows an alleged father to challenge a verified acknowledgement of paternity based on fraud, duress, or mistake of fact, Ashburn is the first SC case I’ve seen that approved the reversal of a paternity determination based on fraud.
Ashburn (the alleged father) was in the Marine Corps when the child was born. He is white, the mother is black, the child is biracial, and the mother told him that she had not had relations with any other white men.
- Signed paperwork through the military acknowledging that he was the father and agreeing to pay child support;
- Agreed to genetic testing through DSS but never submitted a sample;
- Did not attend the birth of the child; and
- Had minimal contact with the child other than what was required by the Marine Corps.
More than 10 years later, the mother asked for a child support modification. Ashburn then asked for a visit with the child, obtained a DNA sample, tested it, and discovered that he was not the biological father. A later test by the Court confirmed the results.
Although the mother testified that maybe she had gotten drunk at a party around the time of the child’s conception and maybe she had relations with another white man around the time of the child’s conception, but she had not told Ashburn, the family court found that there was no fraud.
The Court of Appeals disagreed – they found that there was fraud, that Ashburn did not have a relationship with the child, and that minimal financial support was the only benefit to the child. They reversed the family court, finding that Ashburn is not the father and he would have no further child support obligations.
With modern advances in DNA evidence, establishing paternity in today’s courts is no longer a guessing game. Whether you are an alleged father who needs to challenge paternity in an initial custody action or later challenge paternity based on fraud, or a mother who needs to establish paternity to force the father to pay child support, your attorney at Axelrod and Associates can help.