Being considered the legal mother of a child is fairly straight forward; you either gave birth to, or adopted the child. Being the legal father, on the other hand, may not be so simple. Ideally, the parents are married, or a couple at the time of the relationship, and the father acknowledges paternity. In that case, the father would sign the birth certificate at the time of the child's birth, and that would legally make him the father. Many children, however, are brought into this world under complicated circumstances, and establishing paternity may not have been possible during the pregnancy, or at the time of the child's birth. In that case, a legal presumption of paternity will be applied under the following circumstances:
- The father marries the mother within 300 days of the child's birth.
The man who is, or was (either through divorce or death) the husband of the mother within 300 days before the child's birth is presumed to be the father.
- The father marries the mother after the birth, and fulfills the following requirements:
- acknowledges paternity in writing with the State Registrar,
- seeks to have his name added on the child's birth certificate,
- publicly declares himself as the biological father,
- agrees to, or is court ordered to pay child support.
- The parents are unmarried, but the father publicly acknowledges the child is his, and pays child support before the child turns 18.
- The husband is not the biological father, but:
- the biological father and mother sign a Certificate of Parentage,
- he and the mother sign a Denial of Parentage form to acknowledge that he is not the biological father, and;
- both he and the mother file forms with the State Registrar.
In addition, there are parentage guidelines for children born through artificial insemination. First and foremost, legal presumption does not apply if the woman is not married or in a civil union at the time she becomes pregnant via artificial insemination. Furthermore, the insemination process must be supervised by a licensed physician. If these conditions are met, legal presumption of paternity applies as long as the husband (or partner in a civil union) consents to the procedure. If the aforementioned conditions are not met, the sperm donor will be considered the legal father.
While establishing paternity can be challenging in itself, fighting a legal presumption of paternity is even more difficult. Paternity challenges must be filed prior to the child turning 23, along with evidence that is “clear and convincing”. Because legal definitions are often different from colloquial meanings, you should consult an attorney to ensure that you meet the standard of proof required by the New Jersey courts system. An attorney can also help you meet court requirements for DNA testing, which must be done at a state approved laboratory. For more information on your paternity rights and legal options, please speak with the family law attorneys of Villani & DeLuca, P.C.