Paternity simply means "the state of being a father." When an unmarried couple has a child, it's essential that the father's paternity be established as soon as possible after the baby is born.
Establishing who the legal parents are (sometimes called "parentage") protects the mother, the baby, and especially the father, by greatly reducing the possibility that a judge will deny the father custody or visitation of his child, or other rights to which fathers are legally entitled. It also helps ensure that the child will be eligible to receive benefits through the father, including health, survivors', disability, and life insurance benefits.
Keep in mind that parents are legally responsible for their children and their support, regardless of whether the parents are married to each other. And even if the father didn't want the child, or split from his partner before the baby was born, he remains responsible for the child's support. Establishing paternity is crucial in securing financial support from an unwilling father.
The best way to establish the father's paternity is by naming him on the baby's birth certificate. (However, as discussed below, some states require unmarried parents to sign an acknowledgment of paternity first.)
Part of the process for getting a birth certificate usually is to give the baby a name. Although the last name of the baby doesn't have a legal bearing on paternity or parentage, when parents are unmarried or have different last names, questions can arise about which last name the baby should have.
In most states, you may give your child any first, middle, and last name you like. You don't even have to give the baby the last name of either parent if you don't want to, and the child doesn't have to have the father's last name to be considered "legitimate." (Learn more about the legitimacy of children born to unmarried parents.)
The procedure for naming a baby is simple. A representative of the local health department or similar agency, or a hospital social worker, meets with the new mother in the hospital immediately after the birth. The representative typically asks the mother for the child's name and requests information about the father, such as his name and occupation. The mother doesn't have to name the child at this time, though she will probably be urged to do so. The information the mother gives is typed on a form that she signs. The state then issues a birth certificate, which usually doesn't reveal whether the parents are married.
If the baby isn't born in a medical facility, the mother or the physician, midwife, or other person assisting in the delivery must notify health officials of the birth. Again, there's no legal requirement that the baby be named at this time, but it's common to do so.
When a birth certificate is issued without a baby's name or the father's identity, it's still possible to update the birth certificate later to include that information. Each state's Department of Health or Bureau of Vital Statistics has procedures for adding the father's name to the child's birth certificate.
If you're going to be adding the father's name to a birth certificate, most states will require an unmarried father to sign an acknowledgment of paternity. In some states, including California, the only way that an unmarried father's name can be placed on a child's birth certificate is if the father signs a voluntary declaration of paternity.
Under U.S. Department of Health and Human Services regulations, all states must offer unwed parents an opportunity to establish paternity by voluntarily signing an acknowledgment of paternity, either at the hospital or at a later time. Partly because of political pressure to reduce the number of mothers on welfare (by ensuring that there is someone else with an obligation to support the child), hospital personnel in many states will make every effort to get the father to sign the acknowledgment before the mother and baby are discharged.
If the father isn't present at the hospital following the birth, the mother won't be able to list him as the father on the birth certificate in his absence. Instead, the father and mother will have to sign a voluntary declaration of paternity (or parentage) at a later time, and have the father's name added to the birth certificate.
A voluntary declaration of paternity signed by both parents has the same legal effect as a court order, so once it's signed and submitted to the appropriate agency, the father's paternal rights are firmly established.
If you live in a state that requires a voluntary declaration of paternity before placing an unmarried father's name on a birth certificate, and you and your partner split up before the baby is born, you might have to bring a legal action to establish paternity if your ex-partner won't sign the voluntary declaration.
If both you and your partner are present for the birth, and it's clear that your partner is the child's father, it's unlikely that you'll be able to leave the hospital without naming the father on the birth certificate or signing a voluntary declaration of paternity. However, if for some reason you don't name the father on the birth certificate or sign a voluntary acknowledgment of paternity at the hospital, then it's essential that you prepare and sign either an official state paternity statement or informal paternity statement.
As discussed above, all states have official forms on which a man can voluntarily acknowledge his paternity of a child. In some states, there's a time limit for signing these forms, but in others there's no time limit. In many states, the father's signature on the forms acts as a substitute for a court order, officially establishing his parental relationship with the child. A homemade form won't accomplish the same thing, so before you create one, find out whether you can still sign a voluntary declaration of paternity with the state.
All states have official forms on which a man can voluntarily acknowledge his paternity of a child. In some states, there is a time limit for signing these forms, but in others there is no time limit. In many states, the father's signature on the forms acts as a substitute for a court order, officially establishing his parental relationship with the child.
A homemade form will not accomplish the same thing, so before you create one, find out whether the window of opportunity for signing a voluntary declaration of paternity is still open. For information on your state paternity rules and forms, contact your state department of health (find yours on the website of the National Center for Health Statistics (NCHS).
Assuming you haven't signed a paternity statement in the hospital, or used your state's voluntary declaration of paternity, you can prepare an informal paternity statement on your own—although it's usually best to use the official state form whenever you can.
Draft a document listing the father's name, the mother's name, and the child's name, as well as the birth date, and place of birth in the appropriate sections. It's a good idea to look at your state's official form to see what language it uses to acknowledge paternity. Alternatively, contact a local attorney to draft an effective statement.
Prepare two copies of the statement and have your signatures notarized on both copies. Notarization isn't required, but it's an excellent idea. In the event the father dies, the mother might have to present the paternity statement to various public agencies—and possibly life insurers and other private companies. Notarization proves that the father's signature wasn't forged after the father's death.
The mother and father should each keep a copy of the notarized paternity statement. Some states have set up procedures to file paternity statements with a state agency. For information on doing this, contact your state's Department of Health or Bureau of Vital Statistics.
Legal disputes over paternity commonly concern a father's responsibility for paying child support. A father's refusal to sign a paternity statement won't get him off the hook for paying child support. If a father doesn't voluntarily sign the statement, the state will go to court to establish that he is the father and collect child support.
Other paternity-related legal disputes concern the father's parental rights. In most cases, a father establishes his parental rights by signing an acknowledgment of paternity or a paternity statement at some point after the child's birth—as long as no dispute over custody or adoption arises in the interim. However, the U.S. Supreme Court has held that if a father waits until a custody dispute arises, it might be too late to establish full parental rights—unless he's had an ongoing relationship with the child. (Quilloin v. Walcott, 434 U.S. 246 (1978).) For example, the Court denied a father's right to block a child's adoption—thereby cutting off his parental rights—in a situation where he had no real relationship with his children and didn't try to legitimate them until the adoption proceeding began. (Lehr v. Robertson, 463 U.S. 248 (1983).)
In some states, only a father who has established paternity by coming forward promptly and demonstrating a full commitment to his parental responsibilities must be notified of adoption proceedings. (In re Kelsey S., 823 P.2d 1216 (Cal. 1992).) And if he does learn of the proceedings, he might not have legal standing to object.
In many other states, there is a trend towards giving unmarried fathers more rights, especially when the father has promptly and consistently attempted to form a paternal relationship with a young child, but was prevented from doing so by the mother's actions. For example, when the mother failed to tell the father of the birth of their child, if the father later discovers the birth and promptly makes a good faith effort to assume responsibility for the child, the courts generally will protect his rights, as in the Baby Jessica case. (In re Clausen, 502 N.W. 2d 649 (Mich. 1993).)
If you are in a paternity dispute with the unmarried parent of your child, it's usually a good idea to consult an experienced family law attorney.
Although officially acknowledging paternity is a very good idea if you are the father of the child, if you're not the father, or if you're not sure, don't sign a paternity statement. After you sign a paternity statement, you'll be liable for child support—and maybe even have to reimburse the state for welfare payments made to the mother—until you can prove that you aren't actually the child's father.
In states where the mother can state the name of the father even when he's not present at the birth, some women are tempted to write down a name other than the actual father's on the birth information form. This is most common when the mother no longer sees the biological father and is involved with someone whom she would prefer to help raise the child or who is financially better able to do so.
Identifying a man as the baby's father when that man is not actually the father is a terrible idea. An unmarried couple's current relationship might not last forever, and complicated legal questions of paternity and support can grow from listing the wrong person as the father of a child. In a well-known case (In re Clausen, 502 N.W.2d 649 (Mich. 1993)), the mother of Baby Jessica lied on her baby's birth certificate, saying that the father was her new boyfriend. She didn't tell her ex-boyfriend that he had a biological child. When the mother and her new boyfriend gave the baby up for adoption, the biological father found out and wanted to claim Baby Jessica. A long legal battle ensued between the new adoptive parents and the biological parents, with Baby Jessica caught in the middle. (She was eventually returned to her birth parents.) To avoid legal and emotional disaster, it's always best to accurately state who the biological father is.
For same-sex couples, establishing parentage can be more difficult than it is for opposite-sex couples—mostly because there is a third-party donor involved. In most states, the law presumes that the person who carries the child is the mother, and the biological sperm donor is the father.
In order for both intended parents to preserve their parental rights, it's important for the couple to closely follow their state's laws on establishing parentage (depending on your state, it might still be referred to as "paternity").
Many states have what are called "Paternity Acts," which lay out the steps that a parent must take to claim paternity (or parentage). It's key to follow the steps laid out in these laws. You'll also want to find out if your state has an "artificial insemination act" or similarly named donor act. Beware of using a standard, non-state-specific sperm or egg donor agreement that you might find on the internet—these often will not meet a state's strict laws on how to determine whether a donor might have parental rights.
In most states, your best bet is for the intended parent to at least sign a voluntary acknowledgment of paternity (or parentage), and it's often a good idea for whichever parent the law doesn't legally recognize to formally adopt the child. Some states offer expedited, simplified procedures for same-sex adoptions (often called "second-parent" or "co-parent" adoption).
Every state's law is different, and some states are more willing than others to recognize same-sex parents' parental rights. Because the laws on the subject change frequently, if you're trying to establish parentage in a same-sex couple (married or not), it's a very good idea to consult with a local family law attorney. Many advocacy groups, such as the National Center for Lesbian Rights, also provide information and advice for same-sex couples hoping to establish parentage.