Fathers play an essential role in raising a child. A common misconception is that when a father's name is on the birth certificate, he is legally considered the father of the child and has the same parental rights as the biological mother. This is not true if the parents were not married at the time a child was born. A father whose name appears on a birth certificate does not enjoy full parental rights including rights to custody and visitation until he is legally declared the legal and biological father via a court order.
Child custody, visitation, and child support can be ordered by a court after paternity has been established. It is especially important for fathers of children who were born out of wedlock to establish paternity because there is no way to enforce visitation rights or request full custody until paternity has been established. Visitation with a minor child can be denied at any time by the child's biological mother until a paternity case has been filed and a visitation schedule has been established in a court order.
If the parents of a minor child were married at the time a child was born, the biological mother's husband is presumed to be the legal and biological father of the child. If the parties file for legal separation or divorce, a court will make determinations regarding visitation in custody in a separation or divorce proceeding rather than in a paternity case. The presumption of paternity when parents were married at the time of a child's birth is a rebuttable presumption which means that either party in litigation may present evidence to contradict the presumption of paternity.
How is paternity established?
To establish paternity, either biological parent may file a petition to establish paternity in state court. A petition may also be filed by the Missouri Family Support Division on behalf of the custodial parent. After the petition has been filed, the other parent will be served with the paperwork and must file an answer within 30 days. Fathers must establish that they are the biological father of a minor child in order to be granted paternity rights. This can either be done by agreement between the biological parents of the child or through DNA testing or other evidence.
The simplest way to establish that a father is the biological father of a minor child is for both parties to sign an acknowledgment of paternity form and file it with the court. An acknowledgment of paternity form is often signed at the hospital where a child is born. Even if a father's name does not appear on a child's birth certificate and an acknowledgment form was not signed at the time of the child's birth, an acknowledgment of paternity form can be signed by both parties at any time.
If there is any question as to whether a father is the biological father, either party in the litigation can request DNA testing through a blood test. While there are many private labs that offer DNA testing to determine paternity, tests from private labs will not always be accepted as evidence in court. If a DNA test is requested, it is important to ensure that the test is conducted at a facility that has been approved by the court. Refusing to submit to a blood test may result in penalties being issued by the court and can even result in a default judgment being entered against a father.
An order for DNA testing may also state which party in the case is responsible for paying for the expenses of the test. If a father who requests a DNA test is indigent and unable to afford the costs of DNA blood testing, he may request that the costs of a blood test be waived and paid by the state.
In cases where paternity is contested, a court may also consider other evidence, including expert opinions regarding the probability of paternity based on other medical testing, the duration of the mother's pregnancy, evidence of sexual intercourse between the mother and father during the possible time of conception of the child, and all other evidence relevant to determining the paternity of a child.
Visitation and Child Custody in Paternity Cases
In a paternity case, visitation and child custody will not be decided by a court until paternity has been established either through DNA testing or through an acknowledgment of paternity signed by both parents of the minor child. If both parents can agree on the acknowledgment of paternity and a parenting plan, they may submit an agreed order and parenting plan to the court for approval. Fathers who are not seeking primary custody of their child should expect to pay child support after paternity has been established. Judges have the discretion to approve, modify, or deny a proposed agreed order.
In cases where the parties cannot agree on a custody or visitation schedule, each parent may submit a parenting plan to the court. A hearing may be requested so that the court can determine which parent will have primary custody of the child. In every family law court, the “best interests of the child” are what a judge considers first when making any decisions regarding child custody and visitation. Each parent will have the opportunity to present testimony regarding his or her relationship with the child and other evidence such as witness statements, documents, and photographs that support their side of the case. Courts will consider many factors relevant to a child's best interests including the following.
- The ability of each parent to provide for the child.
- Each parent's housing situation and whether or not it is suitable for a child's age. Older children may need more room than very young children.
- The location of each parent's home. When parents live far apart, joint custody may not be practical.
- Which parent spends the most time caring for the child currently.
- Whether either parent has prior criminal convictions.
- Evidence of any current or past substance abuse.
- Each parent's plan for raising the child, including each parent's plan for a child's education and religious upbringing.
Many fathers worry that courts are unfair to fathers and tend to award custody to mothers. Courts must always consider the best interests of a child first. Courts often will consider whether or not one parent is the primary caregiver when awarding primary custody to that parent. In many cases, it is a good idea to work together with the other parent to develop a parenting plan. Researchers have found that children do best when they spend as much time with each parent as possible. Joint custody works best when both parents can agree on a parenting plan, especially on major issues like scheduling and educating their children. A court is more likely to order joint custody when it is clear that parents will be able to work together to make it work.
If one parent has not had visitation with a child over a substantial period of time, a court may order a graduated visitation plan so that the child can become accustomed to spending time with that parent before attending an overnight visitation. For example, a parenting plan may order visitation for a few hours a week at first with a schedule that allows the parent increased visitation over time.
Modifications and Enforcement of Child Custody and Visitation
Court orders in a paternity case can be modified when there is a material change in circumstance. A changed circumstance may occur when one or both parents remarry or relocate or if there has been an event during a parent's visitation that could affect the health, safety, or mental well-being of the child. In some cases, it may be possible to request an emergency temporary change of custody if there is evidence that a parent's actions could place a child's health or safety in jeopardy. A temporary order may be issued by a court until a hearing can take place. When granting a modification of a prior court order, judges will primarily consider evidence about changed circumstances since the last order, including whether or not both parents have been following the court-ordered parenting plan.
Modifications may also be made to child support orders if the non-custodial parent's income has changed since the entry of the last court order. Either parent may request a modification of a child support order and will be expected to provide proof of their income with documents such as pay stubs and tax returns.
A paternity case can also be reopened if a parent is disobeying previous court orders by failing to follow a parenting plan, not paying child support, or disregarding any of the provisions in a court's previous orders. These can be brought to a court's attention by filing a petition for contempt. Interference with a parent's court-ordered visitation is taken very seriously and can be considered grounds for modification of custody in some cases.
Parents who have been court-ordered to follow a visitation schedule do not have the discretion to deny the other parent visitation even if they believe that withholding visitation is in their child's best interests. Instead of taking this type of action which could result in allegations of contempt, any requests for modification should be filed in the court where previous orders were issued as soon as possible.
Consult a Cass County, Missouri Family Law Attorney
If you have questions about filing a paternity case or requesting a modification or enforcement of visitation in a paternity case, Joshua Wilson can help with your case. Contact the Joshua Wilson Law Firm online or by calling (816) 331-9968 to schedule a consultation.