I asked William Halaz, a Missouri family law attorney for the nationwide domestic litigation firm Cordell & Cordell about paternity problems. As the editor of DadsDivorce.com, I often receive lots of questions through our Ask a Lawyer feature about paternity issues.
The most common ones have to deal with a baby being born during dissolution proceedings. I posed the following question to Halaz and his response follows (note: throughout his answer, he references Missouri’s Revised Statutes (RSMO):
If the baby isn’t mine but is born during divorce proceedings before our divorce is official am I legally responsible?
In Missouri, there is a presumption of paternity, or fatherhood, if a man and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 hundred days after the marriage is terminated by death, annulment, declaration of invalidity, or dissolution, or after a decree of separation is entered by a court, RSMO 210.822.1 (1). This presumption is rebuttable by clear and convincing evidence.
There is also a presumption of paternity if an expert concludes that the blood tests show that an alleged parent is not excluded and that the probability of paternity is 98% or higher RSMO 210.822.1 (4). A presumption created by a blood test has conclusive effect in Missouri.
If two or more presumptions arise which conflict with each other, the presumption based on the facts of the case that is supported by weightier considerations of policy and logic is determinative of who is the father.
To assert paternity or non-paternity, an action must be brought in court. Not just anyone can bring a paternity action though.
Under RSMO 210.826.1, a child, his natural mother, a man presumed to be his father under the previously mentioned statute, a man alleging himself to be a father, any person having physical or legal custody of a child for a period of more than 60 days, or the family support division may bring an action to assert the existence or nonexistence of the father and child relationship presumed under subsection 1 of section 210.822.
The family support division may also bring the action, however this is unlikely as they would not want the child to be without care and support. A grandparent or other relative would not be able to bring this action unless they had physical or legal custody of the child from more than 60 days.
Once this action is brought, the Court must engage in a two-step process to determine paternity.
Step 1 is to ascertain whether there is “clear and convincing” evidence to rebut a presumption that a presumed natural father is, in fact, the natural father.
Step 2 only occurs when, after Step 1, there remain competing presumptions that conflict with one another. If Step 1 fails to eliminate all but one presumed father, the trial court must then, in Step 2, weigh those remaining presumptions conflicting with each other to determine which one, on the facts, is founded on the “weightier considerations of policy and logic.”
As always, consult with an experienced family law attorney for any issues dealing with paternity.