Do I have to pay child support for a child that is not mine?
Parents have a duty to support their biological and adopted children. But what if you believe a child is yours, only to find out that that is not true? Do you still have to pay child support? As with every legal issue, it depends on your individual circumstances. A North Carolina attorney should be able to consult you on this issue. This blog post is not meant to stand in for the advice of counsel. It is an overview of how challenging paternity might go in some different scenarios.
How do I challenge paternity?
If there is a question of whether or not you are the father, it is best to bring that up early. The best time to raise the issue is as soon as the child’s other parent files a complaint for child support or custody. Someone who is generally considered to be the father, but may not actually be the father, is usually referred to as the “putative” father. If the putative father believes he is not the biological father, he can file a motion for a paternity test. The court will order that he, the child, and the child’s other parent have a DNA test done to determine parentage.
The DNA test can’t be done through ancestry.com or another online DNA testing service. It must be done in a lab setting, such as through LabCorp. This is because online DNA testing results could easily be faked. (See N.C. Gen. Stat. § 8-50.1).
A putative father can challenge paternity even if he was married to the child’s mother. Usually, if a child is born during a marriage, the husband is automatically assumed to be the father and placed on the birth certificate. However, even if that happened, the husband/putative father can challenge paternity later. See Ambrose v. Ambrose, 140 N.C. App. 545, 536 S.E.2d 855 (2000) in which the court ruled that the husband could ask for a blood test to confirm whether or not he was the father. As long as the court has not already determined who the parents are, the putative father should be able to challenge his paternity quite easily.
What if I don’t find out I’m not the father until later?
If someone ends up paying child support for months or years before challenging paternity, the situation gets a lot trickier. Paternity is usually established in one of the following ways at the beginning of a child support case:
- Genetic testing: If Child Support Enforcement is representing the parent trying to get child support, they will most likely conduct a genetic test at the beginning of the case to confirm parentage.
- Default judgment: If the mother sues for child support and the father fails to show up at the hearing to defend himself, or to state that he is not the father, the court will usually enter what’s called a “default judgment.” This judgment will find that the putative father is the biological father, even without a blood test being performed. The putative father lost his chance to say otherwise when he didn’t show up to court.
- Stipulated judgment: If the putative father “stipulates” (agrees) that he is the biological father by signing an acknowledgment of paternity, that will become part of the court order and record. Again, the putative father lost his chance to challenge paternity when he admitted he was the biological father.
- Marriage or name on the birth certificate: If the putative father was married to the mother when the child was born, and/or he has signed the birth certificate, he is presumed to be the biological father. As discussed previously, this presumption can be challenged by the father. However, if a lot of time passes and the putative father continues to pay child support, it becomes harder to challenge this later.
- Agreement of the parties outside of court: If the parties agree to a child support arrangement outside of court, this might make it harder for the father to challenge paternity later. Also, if the father at some point filed a complaint for custody, or divorce, or child support, and in one of those pleadings he stated that he was the father of the children, that would probably be considered binding and it would be difficult to challenge paternity later.
If one of these things happens and the father is ordered to pay child support, it’s a lot harder for him to challenge his paternity later. This is because of the doctrine of res judicata. Res judicata means “it has already been decided” in Latin. It is commonly referred to as the rule against “double jeopardy.” You may already be familiar with the concept that the same person cannot be tried more than once for the same murder. This holds the government to their duty to get it right the first time, and prevents the persecution of one individual over time.
The same concept applies in civil cases, including child support. If the putative father has already admitted or agreed that he is the father, and that admission has become part of the court record, he can’t go back later and say “never mind, I’m not the father after all.”
Many North Carolina cases uphold this precedent. In Helms v. Landry, 363 N.C. 738, 686 S.E.2d 674 (2009), the Court made a finding of fact in their order for child support that the Plaintiff was the biological dad. Five years later, the mother asked for a DNA test because she believed the Plaintiff wasn’t the father after all. The Court denied her motion because of res judicata – paternity had already been decided.
In the cases of Reid v. Dixon, 136 N.C. App. 438, 524 S.E.2d 576 (2000) and Heavner v. Heavner, 73 N.C. App. 331, 326 S.E.2d 78, the fathers admitted that they were the biological father, and then later tried to challenge paternity. The Court denied those motions because the fathers in both cases had admitted under oath that they were the children’s parents.
Is there any way to challenge paternity after it is established in court?
As you can see, it is difficult to challenge paternity once it has been established in court, but it is not impossible.
N.C. Gen. Stat. § 110-132 provides that if you do an affidavit of parentage, admitting that you are the father, you can challenge that within 60 days before it becomes binding. After 60 days, you can only try to overturn that affidavit in cases of fraud, duress, mutual mistake, or excusable neglect.
N.C. Gen. Stat. § 50-13.13 provides that a father can challenge paternity entered in a court order if he follows certain steps. The most important thing is that he must challenge paternity within one year of when he knew, or should have known, that the child was not his.
Scenarios where paternity can and can’t be challenged
So given what we know now, how successful might men be in challenging paternity in these scenarios?
- “I knew from the moment the baby was born that he couldn’t be mine – he looks nothing like me! There’s also the fact that the baby was born 6 months after the first time I slept with her…” In this case it would probably be easy for the putative father to challenge paternity with a DNA test, as long as he acted quickly.
- “We were married and I put my name on the birth certificate, but after we got divorced when my daughter was 5, she admitted to me that I might not be the father. After that, she filed a complaint for child support when the child was 8.” In this case, even though a lot of time has passed and the putative father’s name was on the birth certificate and the parties were married, it should be easy for him to challenge paternity as long as he acts quickly. There has not been a judicial determination of paternity, which means there is no res judicata issue.
- “The kids don’t really look like me and I always kind of wondered if they weren’t mine… but I’ve been paying child support for them for six years now.” This father probably would not be able to challenge paternity. He always suspected that the children might not be his, but he never said anything about it. By agreeing or being court ordered to pay child support, he was essentially admitting that he was the father. In the court’s eyes, this means that he lost his chance to challenge paternity a long time ago.
These scenarios are fictional and are not legal advice. To obtain legal advice on your specific case, call a North Carolina attorney. Thanks for reading; we hope this post was helpful as a general overview of challenging paternity in child support matters.