April 2009 Bar Bulletin
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April 2009 Bar Bulletin

 

Presumed Fathers Compound Family Structure

By Lisa Dufour

 

A recent Court of Appeals decision has created a new role for family law practitioners. How can you assist your client in determining the father of a child born during marriage where the husband may not be the biological father?

In January, Division One of the Court of Appeals held that a husband, who is presumed by law to be the father of a child, must bring an action contesting paternity within two years of the child's birth.1 The court held that the filing of a dissolution action within two years of the child's birth complied with the statutory requirement under RCW §§ 26.26.530–540.2 The court also found that the Division of Child Support was an individual within the meaning of RCW 26.26.530(1), and therefore had standing to bring an action to determine the father of a child.3

However, it is interesting to note that a child is free to bring an action after the two-year period has run because adjudication of paternity is a due process right and specifically allowed by statute.4 This can lead to a very complex situation, especially when taken in context with the statute that establishes that the child is no longer a necessary party to a paternity proceeding to determine the child's own parentage.5

Years after parents think they have settled the issue of paternity, a child may bring his or her own action seeking a biologically accurate determination of paternity.6 A child is not bound by a paternity establishment unless: (1) the acknowledgement of paternity was based on genetic-testing results; (2) the adjudication of paternity was consistent with the genetic-testing results; or (3) a guardian ad litem represented the child in the proceeding.7

Here are some questions and answers regarding presumed fathers and establishing paternity that a family law practitioner may encounter:

What if the wife is pregnant and gives birth to a child within 300 days after a decree of dissolution was entered?

The husband is the presumed father.8


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