Establishing Paternity in Court

When do you need to go to court?

If parents who are not married to each other have not signed a voluntary acknowledgment of parentage, then you would file a Complaint to Establish Paternity in the Probate and Family Court.

Who can file a Complaint to Establish Paternity?

• the mother;
• a person presumed to be the father;
• a person alleging himself to be the father;
• the child, whether or not a minor;
• the child's guardian, next of kin, or other person "standing in a parental relation to the child";
• the parent or personal representative of the mother if the mother has died or abandoned the child;
• the parent or personal representative of the father if the father has died;
• an agency having custody of the child; or
• the Department of Revenue Child Support Enforcement Division if the child has received public assistance, on behalf of the agency providing the assistance (for example, the Department of Transitional Assistance)

What if the mother was married when the child was born or conceived?

If the mother was married to someone else when the child was born or conceived, the spouse (or former spouse) must be made a party in the case if

• the spouse (or former spouse) has not signed an Affidavit of Nonpaternity

          unless                    

• the spouse (or former spouse) has been adjudicated not to be the father in another legal case.

Who is not allowed to file a Complaint to Establish Paternity?

A person presumed to be the father or alleging himself to be the father may not file a Complaint to Establish Paternity if the mother was or is married to another person and the child is born during the marriage or within 300 days of its termination by death, annulment, or divorce.

What are Genetic Marker Tests?

A very important way to prove paternity is with genetic marker tests.  If a party makes a motion for genetic marker tests, the judge can order the mother, the child, and the person named as the father in the case to take the tests.

The moving party must show why the tests should be ordered.  They do that in their affidavit in support of the motion.  The sample affidavit shows some reasons.  An affidavit by the mother that she had sexual intercourse with the named father during the probable period of conception is enough to show that ther tests should be ordered.

If when the child was conceived, the mother was married to someone else, the court may only order genetic marker tests after notice to the spouse or former spouse.

If a party refuses to take genetic marker tests, the judge can "draw an adverse inference from such refusal."  That means that the judge can hold it against you that you refused to take the test.

At a hearing the judge can look at the genetic marker test report.  The formal evidence rules about submitting a test report to a judge do not have to be followed unless a party has objected in writing to the test results upon notice of the hearing date or within 30 days prior to the hearing, whichever is shorter.

The judge cannot look at the report unless there is also enough evidence that the mother and the named father had sexual intercourse during the period of time when the child was probably conceived.

For more information about genetic marker tests in paternity cases, see Massachusetts General Laws, Chapter 209C, section 17.

Who pays for the genetic marker tests?

At first, the court will order the person asking for the tests to pay for them.  The court can, however, decide that the costs of the testing be shared by the parties.

If the court decides that the named father is the father, then he must reimburse any other party who has paid for the tests.

If you are poor, you can file an Affidavit of Indigency and ask that the state pay for the tests.  The costs of genetic marker tests are considered "necessary expenses" and so you should put the cost of the tests in Section 2 of the Affidavit. Then, if you are found to be indigent, the court should order the state to pay for the tests.

In a case to establish paternity, what can the court do, besides deciding who the father is?

The court can:

• order child support
• order one of the parents to provide health insurance for the child
• grant a restraining order to protect a parent or child
• grant a custody order
• grant an order giving parenting time to one of the parties.