Father and Children

When a couple is married and they have a child there is an automatic legal relationship between the child and the husband of the mother and the father’s name will be on the birth certificate. However, if the mother became pregnant while she was married, but the husband is not the biological father, a Denial of Husband’s Paternity must be submitted before the hospital submits the birth certificate to the division of Vital Records. If the Denial is not submitted before the birth certificate is filed, the husband will be listed as the father and a court order will be necessary to remove his name from the birth certificate. If a couple is not legally married when they have a child there is no automatic legal relationship between the father and the child even if the couple is living together. The father’s biological name will not be placed on the birth certificate without filling out an Acknowledgement of Paternity (AOP).

A few things to point out about the AOP are that it may NOT be signed before the child is born. Each parent must sign in the presence of a notary public. If you are signing in the hospital when the baby is born, the hospital staff will notarize and mail for you. If the hospital files for you, there is no filing fee, but if you are completing the form after leaving the hospital has sent the birth certificate to the Division of Vital Records, there is a filing fee of $15.

It is worth mentioning that when a child is born to an unmarried woman, the mother of the child does not need a court order to prove that she has custody, because she will automatically have legal custody of the child. Paternity must be established in order to obtain child support. It should also be noted that paternity only establishes who is responsible for child support; it does not initiate child support. This must be done separately and on the mother’s own. She can contact an attorney or apply to the Arkansas Office of Child Support Enforcement (OCSE). Additionally, the AOP does not automatically give the father the right to visitation or custody. This must also be asked through the court to establish these rights.

Other reasons besides child support and custody to establish paternity are:

  • A child benefits emotionally from knowing both parents.
  • It enables a child to access necessary familial medical records.
  • Paternity protects inheritances.
  • Ensures Veterans’ and Social Security benefits to a child.
  • Medical and life insurance benefits.
  • A child has necessary legal documentation as to whom his or her parents are.

Another way the mother can establish paternity is to apply for help from OCSE to help. If the man the mother is claiming to be the father, referred to as ‘putative father’,  does not believe he is the father, he will have the opportunity to agree to genetic testing offered by OCSE. If he agrees, OCSE will schedule the testing. If he does not, OCSE will request that a judge order him to appear for genetic testing. The party paying the fees depends on the outcome. If the man claimed to be the father is not the father, the mother is responsible for the costs incurred and if the man is the father, he is responsible for costs.

If the mother or father is not sure who the father is, they should NOT sign the Acknowledgement of Paternity Form. A paternity test is recommended. If the AOP has been signed and either parent decides to change their minds as to whom the father is, they can rescind their acknowledgment if done within 60 days by contacting the Division of Vital Records and requesting a rescission form. If it is after 60 days, the only way to change the legal father of the child is to file a motion with the court. The motion will have to be made based on the claim that the AOP was signed due to fraud (someone lied), duress (forced to sign), or material mistake of fact (you thought one thing and another thing is true).

If you are in any of these situations, contact Kevin Hickey Law Partners to seek legal counsel to assist you in making important decisions about your child’s future.

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(479) 434-2414 Fort Smith • (479) 802-6560 NWA

In the River Valley:
502 Garrison Avenue
Fort Smith, AR 72901
Phone: (479) 434-2414
Fax: (479) 434-2415

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In Northwest Arkansas:
1750 S. Osage Springs Drive, Suite 210
Rogers, AR 72758
Phone: (479) 802-6560
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