We often see stories in the news about celebrities questioning the paternity of their children. However, many couples find themselves in this situation and it is not always clear cut.
So what happens in a situation where a dispute arises regarding the paternity of a child?
In Scotland, a man is presumed to be the father of a child if he is married to the child’s mother at any point between the child’s conception and birth or, as is often the case now, if the parties are not married but he is registered as the child’s father on his or her birth certificate.
Provided that one of these presumptions applies, the father will be awarded parental rights and responsibilities in relation to the child, allowing him to provide direction and guidance to them.
If the presumptions do not apply, the rights and responsibilities can be easily acquired by the father if he is on good terms with the child’s mother. Both parties can sign a Parental Rights and Responsibilities Agreement in terms of section 4 (1) of the Children (Scotland) Act 1995. Once the Agreement has been signed and registered, the parties are bound by its terms and the father will have the same rights as the mother.
Problems arise, however, if the child’s mother is not prepared to enter into an agreement. The father, in these circumstances, will have no option but to take the matter to court. Ultimately the Sheriff will then decide whether or not it is in the child’s best interests for the father to be awarded such rights and responsibilities.
Further complications arise if there is a dispute regarding the child’s paternity. In most cases this can be resolved fairly quickly by having a DNA test carried out. If this is not possible, or if one party refuses to consent to the test, a party can raise a court action seeking a Declarator of Parentage. They then ask the court to make a decision about whether or not the man is the child’s father.
Contrary to popular belief, a court cannot order someone to consent to a DNA test. They can, however, formally request that the person consents to a DNA test. If the person refuses to consent to the test, then the Court can draw an inference from that refusal.
As with all issues concerning children, it is better to have the issued resolved at the earliest possible opportunity. Any delay in resolving issues relating to paternity can cause unnecessary disruptions to the father’s contact or relationship with the child or, in contrast, could result in heartache for a child if the person with whom they have grown to consider as their father ends up not being so.
If you have any queries at all regarding issues regarding paternity or parental rights and responsibilities for unmarried fathers please contact our Family Law Team.
