Paternity and the Family Law Courts
The issue of Paternity is one that arises on a regular basis before the Courts. Where parents are married to each other there is a presumption in law that the husband is the father of the child unless there is proof to the contrary. If parents are not married to each other there is no presumption in law as to who the father of the child is. This is different however where the father’s name is on the birth certificate.
Paternity can be established by the Courts in a number of different ways. Firstly, as part of Court proceedings it may be necessary to establish paternity if there is a doubt in relation to it. This may arise in Maintenance, Access, Guardianship or Inheritance proceedings. The majority of cases in relation to Maintenance, Access and Guardianship are heard before the District Court in the Family Law section. These cases however can also be heard in the Circuit Court. If there is some doubt as to paternity, a Court hearing any of the above mentioned proceedings, may order that the parties in the case undergo a paternity test before any order can be made. In making an order in relation to paternity the Court can also direct who is to be responsible for the payment of the paternity service. Sometimes a Judge can order either of the parents to pay the cost of paternity or order that the cost will be shared.
In some instances a party may refuse to undergo paternity testing and it is common place in this instance for a Court to draw inferences as it thinks proper in the circumstances of that particular case. To give an example, if a father refuses to undergo testing the Court may draw an inference, having listened to submissions on both sides, that the father was afraid the test would show that he was in fact the father.
Under the Status of Children Act 1987 there is a provision that deals with parentage and there is provision for a Court to make an order that blood testing be carried out. It has now become in practice in Courts to also accept the results from swab testing from approved laboratories. The second way paternity may be established by the Courts is in relation to special procedure for a Declaration of Parentage. There is a special procedure available in the Circuit Court called a Declaration of Parentage which can only be used by the person whose parentage is in question e.g. where a parent has died and the child is making a claim on the estate this procedure can be used to established parentage. It is however not available to adopted children.
Depending on the complexity of the case it would be advisable to have a Solicitor represent you in any parentage situation and especially if there is a related hearing in relation to Maintenance, Access or Custody.
As regards the actual testing, all procedures are carried out either by blood samples or mouth swabs taken from the relevant parties. In general terms, the consent of the mother is always required before a child can be tested. In some instances where the consent of the mother has not been obtained the legality of the testing could be in question. The laboratories who test for parentage usually request that testing be carried out on all parties at the same time however, sometimes this is not possible and they will arrange for the testing to be carried out on all parties within a short period of time of each other on the same day. Photo identification is also required for the testing and sometimes a kit can be sent to a nominated GP. If you are serious about getting a parentage test then any laboratory may be in apposition to provide you with a list of GPs that provide the service. Where results are required for Court purposes it should also be confirmed to the laboratory that they operate to a Court approved standard.
In my experience if there is a doubt as to the parentage in the context of Maintenance, Custody or Access proceedings it is always worth getting a test done and then advising a client to have the test done, as if there is any doubt as to who the father of the child is, that doubt should be removed before any orders of the court are made. Once parentage is established the orders that are made will be in the best interests of the child and Access Maintenance, or Guardianship decisions can be dealt with accordingly by the Court