Establishing Paternity

Last Updated On: 4/23/2015 2:39:34 PM

What is paternity?

Paternity has to do with who the “legal father” of a child is. If the parents are not married when a child is born, there is no “legal father” until paternity is established. Paternity can also be an issue when the mother is married when she gets pregnant or when the child is born, but not to the biological father of the child.

The process of legally identifying the father is called establishing paternity. Once legal paternity is established, the father takes on rights and responsibilities for the child, including visitation or custody and child support.

If I was unmarried when I had my child, does the father still have financial and legal obligations to my child?

Yes. If the court finds that the man named is the child’s father, or if the child’s father admits in writing that the child is his and you agree, the child will then have the same right to be supported by the father as any child born to parents married at the time of birth.

How is legal paternity established?

Marriage: If the birth parents are legally married when the wife becomes pregnant or when the child is born, the husband’s name will be placed on the birth certificate as the father, unless a court order says otherwise.

Voluntary Acknowledgment of Paternity: Unmarried parents can sign a document stating they are the child's mother and father to establish the legal paternity of their child. This legal document, called a Declaration of Paternity Affidavit, may be obtained and completed at the hospital at the time of the child's birth. Also, you can get a copy of this form by calling the West Virginia Office of Vital Statistics at 304-558-2931. Signing this form is the easiest way for unmarried parents to establish paternity.  This form can only be used within one year from the child’s birth.

DNA Testing/Court Order: Another way to establish paternity is for either parent to ask the Bureau for Child Support Enforcement (BCSE) to file a case in Family Court to require genetic testing to determine the father of the child. If paternity is established through genetic testing, a hearing will be held to establish child support for the child. You can find contact information for your local BCSE office here.

What if the mother’s husband is not the real father?

A Family Court must determine “non-paternity” of a husband who is legally considered to be the father. Under the law, the Family Court can refuse to do this even if DNA tests prove that he is not the biological father. The Family Court must consider “the best interests of the child” in these cases, not only DNA tests.

In some cases, the mother, the husband and the “biological father” can sign affidavits that can establish the biological father as the legal father (instead of the husband). Additional information is available at the DHHR Health Services Center website.

What if the child’s father refuses to admit that the child is his?

If the man you believe to be the child’s natural father denies paternity, you may bring a court case against him to establish paternity. You can ask BCSE to help you or you can ask a lawyer to help you. This case may be brought in the county where you live, the county where the alleged father lives or the county where the child lives.

Similarly, if a man claims that he is the child’s father (and no other paternity has been established for the child) he may bring a case against you if you deny his claim. Such a case may be brought by either parent any time before the child’s 18th birthday. You may bring such a case even if the alleged father is not in the state.

The Family Court may order blood and tissue tests for you, your child and the alleged father to prove claims of paternity. If you brought the case, you should not have to pay for these tests.

If the alleged father does not appear or file an answer at a scheduled hearing, his paternity will be established by default. If the court finds clear and convincing evidence that the man in question is the father of the child, the court must order child support.

Why should I establish paternity?

One of the most important reasons to establish paternity is so that the child will have a legal relationship with the father. Once paternity is established, the child will be legally entitled to financial support from the father. The child also will gain a right to inherit property from the father. The child may gain access to benefits such as social security benefits, pension benefits and veterans’ benefits once paternity is established.

Finally, if you wish to receive WV Works and fail to help in establishing paternity of your child without good reason, your WV Works check may be reduced. For more information about good reasons not to establish paternity for WV Works click here.

If I establish paternity, will the father have the right to visit my child?

Once paternity is established, legal fathers have the right to have a relationship with and visit the child as the father and mother agree. If the parents can’t agree, they can ask the Family Court to determine visitation and custody. The court will then decide this issue, considering the best interests of the child. Click here for more information on custody.

Although BCSE can help establish paternity, BCSE may not assist either the father or the mother with custody or visitation issues.

Who can I contact to help me establish paternity of my child?

BCSE can help you establish paternity. You can find contact information for local BCSE offices here.

How can I get a copy of a birth certificate?

If the child was born in West Virginia, contact the DHHR Health Statistics Center at: (304)558-2931 or go here.

This is general legal information. For guidance about your situation, talk to a lawyer.