How Does a Father Get Custody When the Mother Denies Paternity?

By Robin Elizabeth Margolis

Parents fighting

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Disputes over custody can hit a snag when a child's mother denies that an estranged or ex-husband or lover is the biological father of the child. In those cases, you may have to file a paternity suit and undergo a DNA test to establish your claim to your child. When celebrity Anna Nicole Smith died in 2007, she was embroiled in a legal contest with her ex-lover, Larry Birkhead, over the paternity and custody of her daughter, Dannielynn. DNA tests showed that Birkhead was Dannielynn's biological father, and he gained full custody of her after Smith's sudden death.

Paternity History

Prior to the development of accurate DNA tests in the late twentieth century, American courts followed the principle that if a man was legally married to a woman and she subsequently gave birth to a child, legally he was the child of his mother's husband. Unmarried fathers had no legal custody rights, though they sometimes gained custody of their children through informal arrangements. For example, founding father Benjamin Franklin brought up his illegitimate son William in his own home. By the late twentieth century, unmarried fathers had acquired legal rights to their children under U.S. law.

DNA Tests

Every cell in your child's body contains DNA, some of which she inherited from you, and some of which she inherited from her mother. DNA testing can therefore help establish paternity. A DNA testing center will take DNA samples from you, the child's mother, and the child, usually cells obtained by swabbing the inner cheek of each person or through other methods, such as taking blood samples. The DNA testing center will match your DNA and the child's mother's DNA against DNA obtained from your child, looking for matching patterns. The tests are 99 percent accurate.

Filing a Paternity Suit

If your child's mother says that you are not your child's biological father, you must prove your paternity before you seek custody. If you are already in court through a custody dispute with your child's mother, you can ask the judge to order a DNA test as part of that proceeding. If you have not yet gone to court, you will have to file a paternity suit and ask the judge to order a DNA test. If the DNA test results prove that you are the child's biological father, you can then ask for custody.

Custody Laws

Whether you intend to ask for shared physical custody of your child or seek sole physical custody, you need to review your state's custody laws and court cases. The Family Law Organization maintains online links to state family law codes. Because each state has its own complicated paternity and custody laws, you may wish to retain a family law attorney to help you with the custody proceeding.