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Biological Fathers and Legitimation

All states have legal procedures for establishing the paternity of children born out of wedlock, or when the husband is found to not be the child's father, pursuant to state law:

The Commonwealth has an interest in its infant citizens having two parents to provide and care for them. There is a legitimate interest in not furnishing financial assistance for children who have a father capable of support. The Commonwealth is concerned in having a father responsible for a child born out of wedlock. This not only tends to reduce the welfare burden by keeping minor children, who have a financially able parent, off the rolls, but it also provides an identifiable father from whom potential recovery may be had of welfare payments which are paid to support the child born out of wedlock.[159]

If the mother is not married at the time of a child's birth, a father wishing to establish legal paternity must legally acknowledge the child as his own. In some states, this may be as simple as filing a form with the birth certificate. In other states, it may require a full court proceeding similar to an adoption. If the mother agrees that he is the father, a man seeking to acknowledge the child as his own usually does not have to prove that he is the biologic father to be declared the legal father of the child. If more than one man seeks to acknowledge the child or if the mother refuses to recognize the man as the father of the child, the courts in most states may order blood tests to determine paternity.

States also provide for the testing of potential fathers who do not voluntarily acknowledge their children. These lawsuits may be brought by the mother or by the state on behalf of the child. It is common for the state to require an unmarried woman seeking public assistance to identify the father (if known) of her children. While a state is free to establish a stricter standard of proof, the U.S. Supreme Court has found that it is constitutional to establish paternity with a preponderance of the evidence standard. By allowing this less strict standard of proof than the standard required for termination of parental rights, the courts recognize the strong societal interest in the legitimation of children. Once the court rules that a man is the legal father of the child, the man has the same rights and duties regarding the child as would the husband of the mother.

[159]Rivera v. Minnich. 506 A2d 879 (1986).

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