Idaho Paternity Testing
By: Ryan Holdaway
When Do Paternity Issues Arise?
Any time a child is born out of wedlock paternity issues may arise. Paternity may come up in the context of adoption, termination of parental rights, and child support and visitation issues. A standard paternity suit will often be initiated by the putative father (father asserting the biological connection to the child) in an effort to ensure parenting time or the biological mother in an effort to get financial and co-parenting support from the biological father. In many cases the State will initiate a paternity action against the biological father for financial support where the biological mother is receiving State aid on behalf of the minor child.
Who Can File a Paternity Action?
Idaho law is very broad in who it will permit to commence a paternity action. A paternity suit may be initiated by the biological mother, the child's legal guardian, the child's next of kin, the Department of Health and Welfare, or other person standing in a paternal relationship to the child. The phrase "person standing in a paternal relationship to the child" has been interpreted by Idaho Courts to include the putative father who is attempting to assert parental rights over the minor child.
When is a Child Considered to Have Been Born Out of Wedlock?
Idaho Code defines "child born out of wedlock" as "a child who is begotten and born outside of lawful matrimony." The common reading of this statute would suggest that a child is considered born out of wedlock only where the child was both conceived out of wedlock and born outside of wedlock. However, Idaho Courts have interpreted the definition as setting forth two circumstances where a child is born out of wedlock. Under the Court's interpretation a child is born out of wedlock where the child is born to an unmarried woman or the child was born to a married woman but the biological father is not her husband. Nevertheless, it should be noted that the Court's interpretation does not change the presumption of fatherhood imputed to the husband at the time of the child's birth.
When Can I Start a Paternity Suit?
A paternity suit cannot be filed prior to the minor child's birth. A paternity suit cannot be filed after the minor child has reached the age of majority as defined in I.C. § 32-101 which currently sets the age of majority at 18 years. Completed adoption and/or parental rights termination actions may also serve to prevent a paternity suit. Consequently, you may bring a paternity action after your minor child is born and before he or she turns 18 years old so long as the child has not been adopted and/or your parental rights have been terminated.
How Do I Start a Paternity Suit?
Most paternity suits are very much like many typical lawsuits in that you simply file a complaint against the biological mother or father. The suit may be filed in the county where the mother resides or the putative father resides.
In cases where the child is part of adoption proceedings and/or parental rights are being terminated the process is a little more complicated. Prior to filing a paternity action the putative father must complete and file a notice of intent to file a paternity action with the Vital Statistics Unit of the Department of Health and Welfare. The form to be completed must be provided by the Department of Health and Welfare. A failure to complete and file that form has significant and detrimental impacts to the putative father.
For instance should the putative father fail to complete and file that form and attempts to commence a suit against the mother, his suit will be dismissed. Additionally, should the mother seek to place the child up for adoption and the child is placed with a family any claims that may have been asserted by the putative father are no longer available to him. In short, it will be too late.
There is an important distinction between regular paternity actions and those paternity actions commenced during an adoption proceeding or parental rights termination proceeding. If the there are no adoption proceedings or parental right termination proceedings the putative father may bring a paternity action without completing the form required under I.C. § 16-1513. Having said that, a putative father would do well to note that his best protection against having his parental rights terminated, and to prevent an unwanted adoption, is to complete and file the form with Vital Statistics. This form may be filed even before the minor child is born.
Is a Paternity Action Necessary if Both Biological Parents Agree On Paternity?
Where both biological parents agree as to paternity they mat complete a Verified Acknowledgement of Paternity with Vital Statistics. When properly completed that document constitutes a legal finding that the putative father is the biological father of the child. While the filing of that document is considered under the statutes to be a commencement of a paternity action, Idaho Courts have viewed it as being in lieu of filing a contested paternity action. It appears filing the acknowledgment will permit the parties to avoid a paternity action for purposes of establishing paternity but a court case may still be needed to establish parenting time and child support obligations.
How do I Prove Paternity?
As with any lawsuit the type and quality of evidence you can use in court is regulated by the Idaho Rules of Civil Procedure and the Idaho Rules of Evidence. In addition to those rules, Idaho's Paternity Act sets forth some specific rules concerning the nature and type of evidence that can be used in court. It also sets forth some presumptions that will work to determine the outcome if the presumptions are not overcome by the party opposing them.
For example, Idaho Code § 7-1114 provides that where the mother was married at the time of birth she and her husband are permitted to testify that the putative father did not have "access" to the mother. Aside from their testimony the mother and her husband do not need to produce any additional evidence as to "access" to the mother. In contrast the putative father cannot testify as to his "access" to the mother without some corroborating evidence lending credence to his claim of "access."
Idaho Code § 7-1119 creates a presumption that the husband of the mother is the biological father of the child. This presumption may be overcome by genetic evidence and/or an affidavit of nonpaternity from the husband and mother and a voluntary acknowledgement of paternity by the putative father. Where the mother was not married at the time this presumption does not exist and therefore does not have to be overcome.
Idaho Code § 7-1115 provides that evidence of sexual intercourse between the parties around the time of conception, scientific evidence, and a Voluntary Acknowledgment of Paternity, may all operate as evidence in a paternity suit. While many forms of scientific evidence may come into play the most common one is DNA evidence. That type of evidence is discussed at length in the Idaho Code. Strict timelines come into play when DNA evidence is involved and DNA evidence can create some powerful presumptions the court must consider.
Where a mother instigates a paternity action and refuses a DNA test the case will be dismissed. Where the putative father refuses to take a DNA test he may be sanctioned (i.e. fined by the court). Where the putative father takes a DNA test and the DNA evidence shows he is not the father it is conclusive evidence and the putative father cannot be found to be the biological father of the child. Where the DNA tests establish the putative father as the biological father by a standard of 98% or better it creates a rebuttable presumption that he is the biological father.
How Do I get the Parties DNA Tested and Who Pays for it?
Once a paternity action has commenced any party may request that the court order DNA testing. The person requesting the DNA tests must pay the costs of the tests but may recover those costs if he or she prevails in the suit. The DNA testing must be done through an accredited lab. Finally, DNA testing must be done such that the test and results can be turned over the opposing party at least 28 days prior to the trial.
Why Should I Establish Paternity?
If you are the putative father you may want to establish paternity to protect your parental rights, prevent an unwanted adoption, or to ensure you have parental visitation time with your child. Furthermore, your child is entitled to your support both as a father figure and financially, irrespective of your current relationship with the mother. Asserting your paternity is the best way to ensure your rights are protected and that you have a relationship with your child.
If you are the mother you may want to establish paternity to ensure your child has a relationship with his or her father. You may need to ensure that the biological father will provide financial support. In other cases, if you are seeking State aid, you may be required to cooperate with the State in identifying the biological father and pursuing the father for financial support.
If you are the husband and not the biological father you may want to relieve yourself of the parental and financial obligations associated with raising a child. This is particularly true where you have no relationship with the child and/or your relationship with the mother is poor.
How Does the Husband Establish Nonpaternity?
The best way for a husband to establish nonpaternity is to file with Vital Statistics an affidavit of nonpaternity. In order to be effective the affidavit needs to be accompanied by a voluntary acknowledgement of paternity signed by the mother and biological father.
Where the mother or the biological father refuse to submit the documents to Vital Statistics the husband may initiate a paternity action under I.C. § 7-1106 as a legal guardian of the child and as someone in a paternal relationship to the child. The husband will have to overcome the presumption that he is the biological father. This will likely require genetic testing.
Can I Rescind a Voluntary Acknowledgment of Paternity or an Affidavit of Nonpaternity?
Once a voluntary acknowledgement of paternity or an affidavit of nonpaternity has been filed with Vital Statistics there is a limited window in which it may be rescinded. The period for rescission is 60 days from the date of filing. Once the 60 day window has closed the acknowledgement or affidavit may be challenged in court but only on grounds of fraud, duress, or mistake of fact. The burden of proof will be on the person challenging the acknowledgment or affidavit.