Paternity Tests and the Family Court – A Beginner’s Guide

What is a Paternity Test?

Under North Carolina law, the term "paternity" refers to the legal relationship between a father and a child. In most cases, the child’s mother and biological father are the only parties with the right to initiate a paternity action. When a child’s parents are not married when the child is born (or when a child is born within 300 days after the termination of the parents’ marriage), the child has no legal father unless the parents (or the court) establish paternity. In most cases, an acknowledgment of paternity (a form signed by both parents establishing paternity) or an affidavit to register acknowledgment or denial of parentage (if the parents do not sign an acknowledgment of paternity) is sufficient to establish a father-child relationship. However, if the mother was married to someone other than the child’s biological father when she gave birth or otherwise engaged in sexual activity with another man at the time of conception, or if the father does not expressly agree to be presumed or declared the child’s father, the parental presumption that the husband is the child’s father may be disturbed.
A paternity test is a DNA test that a court will order to establish parentage. A paternity test analyzes DNA from the blood , saliva, hair follicles, and tissue. This testing creates a bridge of truth between the legal relationship and the biological relationship. If a child or an adult undergoes paternity testing, the most common result is either the exclusion of the tested individual as the biological father of the child or the inclusion of the individual as a biological father of the child. The testing will result in an error rate of less than .01%. If the test results designate that the tested individual is the biological father of the child, the individual then becomes the legal father of the child.
Paternity tests often take approximately 6-8 weeks. However, some labs like Identigene, an international paternity testing company, take as few as three business days. Many labs use a buccal swab, which scrapes the inside of the mouth and cheek for oral fluid. At our firm, we use Identigene labs, and our initial consultation is typically five days before we send the mouth swabs to the lab. In this situation, the testing usually takes about six total days to return.

Overview of Paternity Tests and the Family Court

Paternity tests play a critical role in family court proceedings, especially when it comes to resolving child support, child custody, and visitation rights issues. When an unmarried couple has a child, paternity is assumed. However, there are times when the presumed paternity is called into question, such as when one of the parties questions the biological father’s identity after the unwed couple separates or when they start having a conflict regarding the child.
Allegations of paternity are not uncommon. Paternity tests can be requested by either party in a family court proceeding. Courts will often recommend or even mandate, but not always have the authority to fully compel, a paternity test when a woman gives birth to a child but is not married to the child’s father. If the relationship between the two parties is amicable, the father will usually voluntarily present himself for genetic screening to establish paternity for the birth certificate.
Since paternity cases are geared toward the best interests of the child, a court-ordered paternity test is beneficial to all parties. If the alleged father is determined to be the biological father, then a child support order can be established. A court can issue child support orders to the non-custodial parent even if the child was born out of wedlock but paternity must first be established. Determining the legal father is critical to establishing legal paternity; therefore, a paternity test is essential to having the law identify the father.
A paternity test can also be beneficial if the parentage is legally established but in dispute. If a mother and father are legally committed to their parental responsibilities, visitation rights are established. Paternity tests can be used to determine whether or not a father has visitation or parenting time rights. If a father denies paternity and his parental rights must be terminated, a paternity test can be useful in serving that end.
Today, many family courts order genetic testing for paternity purposes. There are several methods for establishing paternity via DNA testing. Blood tests can be used to examine DNA obtained from several points, including:
Paternity involves a number of statutes that vary from state to state. Every state has child support guidelines that are used to calculate child support payments based on income, expenses, and other factors. A paternity test may be used to determine or contest child support and visitation rights.

Legal Process to Order a Paternity Test

Before a court may order genetic testing in the form of a paternity test, an individual must file a petition with the court. In the context of family court, this is done by filing a Complaint in the nature of a Petition to Determine Parentage and Custody. This pleading sets forth the facts to support an allegation that the parents are or were involved in a relationship or the alleged "father" was involved with the mother during the time period of conception, a due date or the date of birth of the child. If it is a Petition to Establish Parentage, it also requests the court to establish parentage and provide custody and parenting time orders.
Once the Petition to Determine Parentage and Custody is filed, the individual who filed the Petition must serve the other party. Thereafter, the individual who filed the Petition must file a motion for genetic testing (or paternity testing) with the court setting forth why it requests it and attach it to the Affidavit of Service of the Complaint. The other party will then have the opportunity to respond to the motion and set forth why they do not believe the court should order the testing (for example, perhaps they have been other individuals who they believe may also be the biological father).
In this event, the court typically appoints a guardian ad litem for the child (if the issue is between the father and mother) to advocate for the child’s best interest. Arrangements are often made with the testing company to schedule the testing if the parties agree or order it if the parties disagree. Parentage testing can be performed on saliva (cheek cells), blood or rectal swabs. While blood and swabs may provide more accurate results, it is often very difficult to obtain blood from a child (or the rectal swab, for that matter).

Paternity Tests Generally Accepted in Family Court

The two most common types of testing used when establishing paternity are DNA testing and blood testing. Of the two, DNA testing is the most accurate. Most courts do not require blood tests so an individual seeking to establish paternity will typically undergo DNA testing.
DNA testing has come a long way in the past 25 years. It used to be that these tests were not as reliable or accurate. Testing was subject to more error and often did not guarantee a 100% accurate result. There are many types of DNA tests available – some are more accurate than others. The type of DNA test offered also depends on the facility performing the testing. A few DNA sample collection options are:
• Buccal (cheek) swab – commonly used
• Umbilical blood – most accurate but expensive
• Saliva – not known for being 100% accurate
Most courts will accept buccal swabs for the purposes of establishing paternity. Courts will not typically order a blood test, although they do have the ability to do so. If the individual seeking to establish paternity does have his blood tested, it is crucial that a medical professional certified by an established association is present to oversee the withdrawal. A certified medical professional can not be related to the person whose blood is being drawn and must also be of the same sex.
Although blood tests can be used, paternity testing labs typically only use buccal swabs from all the participants. This is because buccal swabs are more reliable, less invasive and less expensive than blood tests. These tests can provide results in only two days with a 99.9% level of probability of identifying the father.
If the parents underwent DNA testing for the purposes of the mother knowing the identity during her pregnancy, it is important that she contact the Court before the child is born to acknowledge the findings. DNA results can also be used to establish visitation or child support. If a paternity test reveals a father, even if he denies being the father, his name will be added to the birth certificate. Both parents will have their names added.

Impact of Paternity Test Results in Family Court

Family courts carefully consider the results of paternity tests when making decisions in custody, child support, and parental rights matters. The results of legitimate tests can provide clear-cut and factual answers to difficult questions.
In cases where a father is the petitioner (i.e. requesting a court order), results that find he is NOT the father obviously preclude him from seeking an order for custody, visitation, parenting time and/or child support pursuant to the Delaware Child Support Formula.
If the report finds the person who submitted the sample IS the biological father, then it allows the judge to move forward in the case. The court’s decision will then depend on the circumstances of what issues are before the court. For example, if the parties agree to a final order as to all issues, the report is likely not relevant except for allowing the result to be admitted into evidence without the need for live testimony.
If issues are contested, the paternity report allowing the person to be adjudicated as the father of the child will allow the court to consider appropriate custodial and financial support options in connection with the outcome of the case. In situations where the parties disagree about the party’s parentage, the test results will meaningfully influence the decision of the court.
Custody and Visitation
Experience teaches that judges are extremely wary of cases where DNA testing is contested. There is a significant amount of dispute and distrust among parties when they believe one party is hiding the truth from them. Because of this, it is not unusual for a judge to order a "best interest" hearing to determine what the terms of visitation should be. After months of litigation over whether the correct parties were ordered to submit to the DNA test and attending paternity hearings , the time needed to litigate the terms of visitation can be frustrating and even painful to the parties and children. Cleaving to months or years of litigation is even harder than starting over when parties are not allowed to move forward with satisfaction in a case.
Child Support
In situations where the relationship is ongoing or the parties are amicable, the results of paternity tests will have no bearing on the financial support obligations because the results of paternity are usually a forgone conclusion.
Critically though, there are cases where individuals express satisfaction with providing financial support to the children even though they are not the biological parent. It is essential to remember that all child support awards are determined by the Delaware Child Support Formula. Without exception, the formula determines what the support is or should be regardless of the parties’ desire (or lack of desire) to provide for the child(ren).
Parental Rights
Where parties are not married, the results of a paternity test result will lend themselves to the adjudication of parental rights. Where the results find that the adjudicated father has been born into the family unit where the alleged mother is her only remaining biological or legal parent, and where the Child Placement Agency objects, the Court must first find placement with the Child Placement Agency (CPA) is contrary to the best interests of the child. For the court to find placement with the CPA is contrary to the best interest of the child, the Court must find that the child will experience a risk of harm if immediate placement is with the CPA. A trial is set to determine the ultimate placement of the child.
This section of the statute promotes the permanency goal of finding children loving and safe permanent homes without delay. It also accomplishes real and important purposes of admitting genetic testing under appropriate conditions.

Paternity Test Results Can Be Challenged

If the results of the paternity tests indicate that the alleged father is indeed not the biological parent of the child in question, the answer as to whether that finding can be challenged by the party seeking to receive the benefits of such a establishment is probably a bit easier than the reverse scenario. Essentially, the test results will be considered conclusive and cannot be generally rebutted or challenged in court.
However, the party who is in the position of challenging the results of the paternity test on behalf of the alleged father has the considerably more difficult task. This claim that the results are invalid can only be made if all four of the following are shown:

• The parties received incorrect instructions or other significant mistakes were made in the collection of the blood for testing.
• The chain of custody was compromised (too many people handling the samples or having access to the samples could have affected the validity of the results).
• The samples were handled in a way that could compromise the test results (improper storage, for example).
• The equipment used in the test was not reliable.

If a party can show these things, he or she can then challenge the results as unreliable and request additional testing by the same lab. If those results are different, then they may be admitted into evidence by the family court judge – if they are the same, then the paternity test result is considered to have been successfully challenged, while the contradictory evidence is treated as merely corroborating the validity of the original results.

Frequently Asked Questions About Paternity Tests and Family Court

When I visit with clients I find they often have concerns or questions about paternity tests. Below, you will find a summary of the most common questions and answers regarding paternity tests and family court.
Q: Is a Paternity test always necessary?
A: No. A paternity test is not always necessary. A paternity test only has to be done if there is a dispute about whether a person is the father of a child.
Q: When is a paternity test necessary?
A: A Paternity test in family court is only necessary when a person is being ordered to pay support for a child that is not his biological child. The test is used to confirm whether or not the person is the biological parent of the child.
Essentially, a paternity test in family court is used to establish the correct party that is liable to pay support to the child.
Q: Can a Paternity test be performed without an Order of the Court?
A: Yes, however, it is very important to note that there are strict time requirements for bringing a paternity claim in family court. If a person has reason to believe that the child of whom he may be the father has been born in the past 30 years and he does not bring a claim in family court to recognize his paternity he may be forever barred from making such a claim and even worse , he may be forced to pay support for the child for life when he is not the true biological parent of the child.
In my experience, if both parties agree to the paternity testing, it is best to leave the issue open so the’ party may bring the claim later should the DNA testing results indicate that he may be the biological parent of the child.
Q: Who is responsible for paying for the Paternity test?
A: Under the law, the cost of the paternity testing is divided equally between the parties involved in the action. However, the judge has the power to alter the payment. For instance, if a person has been taken by surprise by the paternity issue, the court may not order this person to pay for the test.
If the court orders the paternity test and a person fails to comply, the court can use this non-cooperation as proof of parentage. In practice, this means that the court may order the person to pay the entire cost of the paternity testing as well as attorney’s fees.
Q: How do I get a paternity test performed?
A: Once the plaintiff requests the court to order a paternity test, the court will require that the test is performed through a state approved laboratory. This is the only place that the test can be performed.