All parents in the U.S. have a legal duty to financially support their children, whether or not they're married. But before a man is ordered to pay child support, there might need to be a legal determination that he actually is the child's father. Learn when and how you need to establish your child's paternity—and what to do if you don't believe you're the father.
When a married woman has a child, state laws presume that her husband is the baby's parent (more on that below). So if the couple splits up and the mother seeks child support from her husband, she won't need to prove he's the father.
In contrast, when parents were never married, the mother may not seek child support from the man she believes is the father until she gets a court order stating that he is, in fact, the child's legal father. Usually, the easiest way to establish paternity is for both parents to sign a form agreeing that the man is the father, or to undergo DNA testing.
All states have paternity acknowledgment forms that unmarried parents can sign, either at the hospital when the baby is born or later (although there might be a time limit on that). In many states, a paternity acknowledgment signed by both parents has the same legal effect as a court order establishing the father's paternity and giving him all the legal rights and responsibilities of parenthood, including the obligation to support his child. It's important that parents use their state's official form, because a homemade version is unlikely to carry the same weight.
Parents may also establish paternity by listing both of their names on the birth certificate when the baby is born. But some states will require unmarried parents to sign the paternity acknowledgment form before they can do that. Also, most states won't let them add the father's name to the birth certificate later unless they both sign the acknowledgment.
Disputes over a child's parenthood usually begin after a man who isn't married to a child's mother receives official paperwork from a court or child support agency notifying him of a request to pay child support. This request, often labeled a "petition" or "complaint," is typically addressed to the child's "alleged father," meaning the court or agency has reason to believe he's the biological father. This request may have been initiated by the child's mother, or by the child support agency in an attempt to recover funds after the mother has applied for public assistance.
This paperwork typically directs the alleged father to submit employment and financial information that'll be used to determine the amount of child support owed. It also generally explains the steps the man must take if he denies that he's the father or objects to any part of the request.
It's important to respond to a child support petition promptly. If you've received this paperwork and don't file a complete response before the deadline, a judge may issue an order declaring that you're the child's legal father and requiring you to pay child support without your input.
A judge may order a child's parents to undergo DNA genetic testing to establish paternity, but that's not always necessary. Either the mother or the alleged father may simply submit a request for DNA testing to their state or tribal child support agency, which will generally help to coordinate the testing process.
Once the agency or court has ordered it, the mother, child, and alleged father will each be required to have a DNA test performed by a state-authorized laboratory. If the mother has named more than one potential father, they might all need to be tested.
The test results, which are generally very accurate, provide a percentage of probability (likelihood) that the alleged father is, or isn't, the child's biological father. The guidelines for interpreting paternity test results vary by state. In many states, a person is legally presumed to be a child's father if his DNA test results indicate a certain minimum percentage of probability (typically 97% to 99%) that he's the biological father.
If the mother or alleged father objects to the test results, they may request additional DNA tests. As a general rule, the state must administer at least one more round of DNA testing after such a request. Here's what happens next once the official testing is complete:
The state will generally pay for DNA paternity testing when a court or child support agency ordered the tests. Some states require the alleged father to reimburse the state for the costs if he denied paternity but the test results indicate that he's the biological father. Also, anyone who objects to the initial results will typically need to pay for the second round of testing.
You'll usually have to pay the bill if you choose to take a DNA paternity test even though you weren't required to do so. There are several companies that offer to administer "legal" DNA paternity tests, which generally means the company believes the results will qualify as evidence in a court case. This testing process may cost $300 to $500 or more. Many companies also offer less expensive at-home DNA paternity tests, but at-home tests generally can't be admitted as evidence court.
What if you've been asked to pay support for a child who was born or conceived while you were married to the mother, but you don't believe the child is yours? Even though the state will presume that you're the father, you might be able to prove otherwise.
Laws on the paternity presumption (sometimes called the marital or parenthood presumption) vary from state to state. Typically, you may try to "rebut" (overcome) the presumption, but there may be limits on the circumstances and timing for doing that. You'll generally start by filing paperwork with the court to start a legal parentage proceeding.
You'll need to submit evidence showing that you couldn't be the child's biological father or that someone else is the father. Depending on the laws in your state, this evidence might include:
After the U.S. Supreme Court declared that same-sex marriage is legal in all 50 states (Obergefell v. Hodges, 576 U.S. 644 (2015)), the Court extended that decision to other benefits of marriage, including parentage (Pavan v. Smith, 582 U.S. 563 (2017).)
Since then, some states have amended their laws on child support and parentage to use gender-neutral language or to apply the laws regardless of gender. And the courts in several states have held that the paternity presumption also applies to the wife of a woman who had a child during the marriage using assisted reproduction. However, state courts haven't been consistent in their treatment of same-sex child support obligations, and most states' laws don't provide guidance on how the paternity presumption should be applied to same sex spouses.
So if you're seeking child support (or fighting a child support request) from a same-sex spouse, you should consider speaking with a family lawyer who can offer advice on same-sex divorce in your state.
For most parents, your first stop to get help with paternity issues and child support will be your state or tribal child support agency. The agency can generally provide information and help answer questions about applying for (or modifying) child support, establishing your child's paternity, and the process for requesting DNA testing.
If your case is more complicated—for instance, if it involves surrogacy or overcoming a paternity presumption—you should consider speaking with an experienced lawyer who can explain the laws and options in your state. If you can't afford a lawyer, you might try contacting your local legal aid office to find out if you're eligible for free or low-cost legal services. Some state courts also have free legal self-help program.