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Paternity Testing Do’s and Don’ts

In the state of Arizona, there are strict rules around the establishment of a child’s presumptive paternity. In most cases, paternity can only be rescinded within 60 days of the presumptive father’s written legal acknowledgment of paternity. This must be filed with the Department of Economic Security, the Department of Health Services, or a clerk of the court.

After sixty days have passed, the court presumes the man listed on the birth certificate to be the father of the child, and in general, will not order a paternity test to rebut that presumption. However, within 6 months of a voluntary acknowledgment of paternity, rule 85(c) of the Arizona Rules of Family Law does allow a mother or father to challenge that voluntary acknowledgment only on the basis of fraud, duress, or material mistake of fact. The burden of proof is always on the claimant. Child support obligations will not be suspended during this time, and except for some forms of fraud upon the court, this challenge must occur within six months of the voluntary acknowledgment of paternity. In general, genetic testing is impermissible without “an evidentiary showing, beyond just a mere allegation, of a permissible basis for such a challenge” under Arizona state law.

The law in Arizona is meant to narrow collateral attacks on a person’s presumed paternity after the fact. However, if the court finds by clear and convincing evidence that genetic tests establish that a man is not the biological father of the child, the court shall vacate the determination of paternity and relieve the presumed father of the ongoing requirement to pay child support. This relief does not apply to child support arrears, or amounts ordered to be paid previously by the court.

There are several scenarios wherein the court may or may not order genetic testing to rebut the establishment of paternity. In the case of a divorce, a man who has been the presumed father of children born to the marriage cannot turn around and file a request for a paternity test years after the fact based on mere suspicion that the children are not genetically his, for example. The man would have to prove that he signed the birth certificate as a result of fraud, duress, or material mistake of fact. Additionally, even if another man and the mother of the child were to file an action requesting a paternity test, the court cannot order one without the presumed father’s knowledge and express consent. In cases where the mother has alleged that she only listed the putative father as a result of abuse, the court can order a paternity test if and only if she meets the burden of proof of clear and convincing evidence at an evidentiary hearing.

If you are undergoing a child custody battle and are unsure of your child’s paternity, we here at Simon Law Group can help. Contact us today for a free consultation!

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