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Paternity in North Dakota

When In Doubt, Get Your DNA Checked Out

/ Family Law

Jennifer Albaugh was the contributing attorney to this content.

Approximately two and a half years ago, I was blessed with my son, Hudson. He is fun, energetic, and a complete joy… most days. He is also completely infatuated with hockey, which causes me concern for the future of my family’s financial state, but I digress. While they have their moments, having a child is a milestone in life that most people seek to attain. I can say with 100% certainty that my husband is the biological father of my son; this is also confirmed by the fact that my son is basically a toddler version of my husband.

However, some people wonder after the birth of their child if they are in fact the biological father. Let’s face it, infidelities happen that can cause this concern to be both significant and legitimate. If for some reason you have this concern, whether you are married, engaged, or just dating, it is important to address it quickly, because if you don’t you may find yourself responsible for a child that does not share your DNA.

North Dakota enacted the Uniform Parentage Act in 2005. The Uniform Parentage Act was published by the Uniform Law Commission, with an initial version introduced in 1973. It has been adopted by the following States: Alabama, Delaware, Illinois, Maine, New Mexico, Oklahoma, Texas, Utah, Washington, and Wyoming. Adopting the Uniform Parentage Act not only addresses modern concerns involving parentage, but most importantly, provides uniformity in this area of the law. The bottom line is that the Uniform Parentage Act contains the law for determining parents of children.

Legally speaking, there are four different ways you can be recognized as a child’s father, and it’s important to know the difference between the four, especially if you are unsure as to whether or not you are the child’s biological father.

• Acknowledged Father: This is a man who has established a father-child relationship, by signing an Acknowledgement of Paternity at the hospital, pursuant to North Dakota Century Code Section 14-20-02-(1). Now, if you are married you will not be asked to sign an Acknowledgment of Paternity, because you are considered to be the Presumed Father, which is discussed below.

• Adjudicated Father: This is a man who has been adjudicated by a court of competent jurisdiction to be the father of a child, as described in North Dakota Century Code Section 14-20-02-(2). Basically, a North Dakota Court has previously determined that this man is the biological father of a child.

• Alleged Father: This is a man who alleges himself to be, or is alleged to be, the genetic father or possible genetic father of a child, but whose paternity has not been determined, pursuant to North Dakota Century Code Section 14-20-02(3).

• Presumed Father: This is a man who is recognized as the father of a child, unless that status is rebutted or confirmed in a judicial proceeding, as described in North Dakota Century Code Section 14-20-02(16). A man is a presumed father of a child under the following circumstances:

•  He and the mother are married when the child is born;

•  He and the mother are married when the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, divorce, or after a decree of separation;

•  He and the mother were married, in apparent compliance with the law, before the birth of the child;

•  He and the mother married, in apparent compliance with the law, after the birth of the child, as long as he voluntarily asserted his paternity of the child and the assertion is in a record filed with the state department of health, he agreed to be on the child’s birth certificate, and he promised in a record to support the child as his own; or

•  He resided in the same household as the child and openly held out the child as his own for the first two years of the child’s life.

The avenue you take to challenge or rebut your status as a child’s father is controlled by whether you are recognized as the child’s Acknowledged Father, Adjudicated Father, Alleged Father or Presumed Father. 

If you are the child’s Acknowledged Father, there are a couple of options to challenge your position as the child’s father. You can rescind the Acknowledgment of Paternity you signed at the hospital, as long as you commence a proceeding to rescind it before: the earlier of 60 days after the effective date of the Acknowledgment of Paternity, or the date of the first hearing before a court to adjudicate an issue relating to the child, including a proceeding that establishes support.

If you miss this time frame, don’t panic. You can still commence a proceeding to challenge the Acknowledgment of Paternity on the basis of fraud, duress, or material mistake of fact. However, it is very important to note that this proceeding must be commenced within two years after the Acknowledgment of Paternity is filed with the state department of health.  If you do not challenge the Acknowledgment of Paternity, then you will be considered the child’s legal father.

If you are the child’s Adjudicated Father, well then, congratulations! This means you have likely undergone genetic testing, as described in North Dakota Century Code 14-20-27, which revealed you have a 99% probability of being the child’s father.

As the Alleged Father, there is no Acknowledgment of Paternity for you to challenge.  However, in order to prove or disprove your position as a child’s Alleged Father you will want to commence an action to adjudicate the parentage of the child, and request genetic testing be ordered by the court. When you commence this action, you’ll provide a sworn statement to the Court explaining why you believe you are the alleged father and state the facts causing you to believe this is the case. On the flip side, if you are denying you are the Alleged Father you would explain the reasons for your denial. The genetic test would then confirm or deny that you are in fact the child’s biological father. If you are confirmed to be the child’s biological father through genetic testing, the court would recognize you as the Adjudicated Father. If the genetic testing revealed you are not the biological father, then you could rest assured that you do not have a child.

If you are the child’s Presumed Father, you can only rebut this presumption by complying with North Dakota Century Code Sections 14-20-36 through 14-20-58. Again, you would want to commence an action to adjudicate the parentage of the child. However, when you are considered to be a Presumed Father there are limitations on commencing this action and it must be commenced not later than two years after the birth of the child. You must again articulate your reasoning for requesting genetic testing, as described in North Dakota Century Code Section 14-20-26(1)(a)-(b).  The genetic tests will then reveal whether or not you are the child’s biological father, and the court will enter an appropriate order either adjudicating you as the child’s father or not.

I think that most people will agree with me that a child is a complete blessing, even more so when you are certain the child is your biological child. Determining whether or not you are a child’s biological father is complicated, and is an extremely time-sensitive legal issue. It’s simple: if you are concerned that you may not be the biological father of your child, then hire an attorney. This is not something you want to go at alone, because if it is not done properly you could find yourself stuck as a child’s legal father, regardless of your DNA.

There are two of us at SW&L who handle family law cases, including paternity actions. If you have a family law issue that you would like to discuss, please do not hesitate to call (701) 297-2890 and ask for Jeni or Greg.