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Paternity. It is an issue which is often questioned, but less frequently explored. What can you do if you doubt your paternal link to a child, and mum is not interested in allowing DNA testing to take place? Or if you need financial assistance from your child's father, but he is refusing to accept that he is daddy?
An application can be made to the court for a declaration of paternity. Section 10 of the Status of Children Act 1969 ("the Act") provides that the following individuals may apply:
(1) A woman who alleges that a named person is the father of her child; or
(2) A person who alleges that the relationship of father and child exists between the person and another named person; or
(3) A person who wishes to have it determined whether the relationship of father and child exists between 2 named persons, and has a proper interest in the result.
The third category concerns establishing paternal links for purposes such as determining an inheritance, which is a story for another day.
Once eligibility to apply is established, proceedings more often than not lead to DNA testing. Otherwise, valid reasons must be put forward for testing not to take place (such as the paternity of the child already having been confirmed to be someone else).
The testing process usually involves the parties being directed by the Court to attend their local testing centre to provide samples.
DNA Diagnostics provides this service. If either party refuses, the Court can draw any inference it thinks proper from the evidence before it.
There are typically two motivations of those who apply. The first is a financial one (child support).
In those circumstances, an application by the mother for a paternity order under the Family Proceedings Act 1980 is an alternative.
The process and outcome are much the same. The second is enabling the father to establish a paternal link.
As the saying goes, "it takes two to tango". Whatever the motivation, establishing paternity early on generally allows a child to develop a relationship with both parents.
The Family Court recognises the relationship between father and child as a special one which should be protected and nurtured.
If you are in financial dire straits, do not fret. You may be eligible to receive Legal Aid, which will cover both your legal fees in making the application as well as costs associated with testing.
What are your rights as a "father"?
Congratulations, you are the father! Now what? The next step may be to apply to be placed on your child's birth certificate - if that has not already been undertaken.
This can be done by filling out a form at the Registry for Births, Deaths and Marriages and typically requires consent from mum or a copy of the newly acquired paternity order.
You can apply for a parenting order to have care arrangements for the child, including your contact with the child, recorded in a court order (note that this is a separate, and slightly more involved, process).
Now that you have a legal document recording you as the "father", you will be entitled to be appointed as a guardian of your child. Appointment as a guardian is an important step to have input in decisions affecting a child's life.
The mother may oppose this application, but she needs to establish that it is in the child's best interests that you are not made a legal guardian.
A father's appointment as guardian by default under the Care of Children Act 2004 is dependent on his relationship with the mother, and whether they lived together between conception and birth in the case of de-facto couples.
A relationship is presumed for a married couple. It may seem strange today that fathers can be denied guardianship based on their relationship status with the mother. This inequality has its roots in the historical view that children conceived outside marriage were deemed to have no legal father.
The Status of Children Act, however, did rescue a significant class of children from the stigma of illegitimacy by deeming all children to be of equal status. This is irrespective of the marital status of their parents. The law has been slower to accord equal guardianship status to all.
Once guardianship status is established, a father has more say in their child's life. Matters such as the child's name, what school they attend, what medical practitioner they are registered with, as well as where they live.
These are all guardianship matters where all guardians need to be consulted and agree. Having paternity successfully declared is the first step in securing these roles in a child's life.
Curtis Fatiaki is one of the law column writers from Treadwell Gordon.