Paternity
Paternity is a legal process to establish the biological father of a minor child. Paternity is an issue when a child is born to parents who were not married to one another when the child was born or when a child was born during the marriage and the husband may not be the biological father. The mother or father may initiate determining the child’s biological father during a divorce.
Once paternity is established during a divorce, legal and physical custody, parenting time, and child support must be determined.
COMMON QUESTIONS ABOUT PATERNITY
What are the paternity laws in Minnesota?
When a child is born to parents who are not married to one another at the time of that child’s birth, he or she only has one legal parent – the mother. Minnesota Statute Section 257.541, subdivision 1 says, “(T)he biological mother of a child born to a mother who was not married to the child’s father when the child was born and was not married to the child’s father when the child was conceived has sole custody of the child until paternity has been established” in Minnesota. Paternity is usually settled at the child’s birth when the mother and father sign a Minnesota Recognition of Parentage form although the divorce court order should address who is the child’s biological father so there is no legal question about this issue in the future.
The father who wants paternity established so he can be legally recognized as the child’s biological parent must raise in the divorce paperwork that he wants to be adjudicated, or legally determined to be, the father. This will then open the door to having legal and physical custody established along with a parenting time schedule for the school year, summer break, vacation, and holidays.
Minnesota law states the husband is presumed to be the biological father of the children born during the marriage. This presumption can be challenged during the divorce if either spouse questions if husband is truly the biological father.
A child without a legal father will have difficulty inheriting anything from the possible father upon his death. There will also be difficulty receiving Social Security benefits from the father if he dies when the child is 17 years old or younger.
Can you force someone to have a paternity test?
No, however, a judge can order a possible father to take a paternity test. The judge will have to address if one or both parents must pay the cost of the test or if the county in which the divorce court case is taking place is going to shoulder the expense.
How to establish paternity in a Minnesota divorce?
There are sections within the state court’s fill-in-the-blank divorce forms that address if paternity is at issue for a child born prior to the marriage. The same forms do not specifically address the situation of a husband possibly not being the father of a child born during the marriage. There are some sections in the forms where the parties include a few sentences about this issue so the judge can address paternity as the divorce case moves through the court process.
How much does a paternity test cost in Minnesota?
The cost varies depending upon in which county the divorce case is taking place. It may be free if the judge requires the county to pay for it. The cost of a private test can cost between $400 to $600 per test.
Paternity testing companies require the child, the mother, and the possible father(s) to all give DNA samples. Those who do not like needles are in luck because the DNA sample is provided through a cheek swab of the mouth rather than through a blood sample.
Can a person refuse to take a DNA test during a Minnesota divorce?
DNA tests are readily available at Walgreens and other retailers, and the results are received in a week or two. While having quick and easy access to these tests is helpful, courts rarely recognize these over-the-counter tests because they lack the ability to track chain of custody, a legal concept involving the collection, movement, processing, and location of the DNA samples when they are obtained until the test results are received in court.
There are several companies that conduct court-recognized DNA tests. Staff at the County Attorney Office where the divorce is taking place can provide information for the reputable testing company it uses. Testing companies require the parties provide a picture ID at the time of collecting saliva and skin cells for the cheek swab. It photographs the participants, including the child, to prove it was them having their DNA taken. The separately taken and packaged samples are sent to a laboratory that has very controlled methods to process the DNA samples, and the results are mailed to each parent. These processes provide a very clear chain of custody to eliminate errors in testing the DNA from the wrong participant.
You can refuse to take a DNA test, but if one is court-ordered it is best to comply. Non-compliance can lead to being found in civil contempt of court where the punishment could be attorney fees, financial sanctions or arrest and jail time until the parent agrees to participate in the test.