The concept of “paternity” refers to the process of going to court to establish a legal relationship between a father and his child.  The process exists because society has created laws to make sure that children are supported by their own biological parents whenever possible.  A paternity action will help determine who should be paying for that support and how much they should be paying.  In Ohio, a paternity action will only apply to a mother and father who were never married  because any child born during a marriage is presumed to be the husband’s legal child.  Paternity actions between unmarried people are typically heard in a county’s juvenile court.

Who can file for paternity?

In Ohio, the only people who can bring an action to establish paternity are the mother of a child, the alleged father of that child, the child (or a representative of the child), or the Child Support Enforcement Agency in the county where the child resides (if the mother, alleged father or guardian of the child is receiving public assistance on behalf of the child).  A grandparent or other relative cannot file a paternity suit.

Why should someone establish paternity?

Paternity helps to protect both a child and his/her parents.  Being named the legal father allows him to file for custody or visitation.  Establishing parentage also provides the mother with the ability to receive child support for the child.  Determining parentage can also help the child because once parentage is established, a father will often become more involved in a child’s life than he was before parentage was established.  Finally, establishing parentage is also important for health insurance coverage, for inheritance reasons, and for social security or veteran’s benefits.

My child’s mother and I both agree that I am the father.  What do we need to do?

To voluntarily acknowledge paternity, the parties need to complete the “Acknowledgement of Paternity Affidavit”.  This is the simplest way to establish paternity.  That form can be completed at the hospital when your child is born and before both parents leave the hospital.  It can also be completed at your county’s CSEA office or at your local Vital Statistics Registrar.  Once the form is completed and filed, paternity is established and cannot be rescinded.

How does genetic testing work?

Genetic testing, or DNA testing, is used to determine the probability that some alleged father is, indeed, the father of child.  Typically, samples of saliva are taken from the child, mother, and the alleged father.  The CSEA uses genetic testing results when seeking an Administrative Paternity Order (APO).  If the results from the test show that the probability of paternity is equal to or greater than 99 percent, the request for an APO will be granted.  If the probability of paternity is less than 99 percent, then the case will be referred to juvenile court to allow for the examination of additional evidence of paternity.

I was never married to my child’s mother, but I would like visitation.  I’ve never established paternity, so what should I do?

Establish paternity.  This can be done by bringing an action in the juvenile court, or in probate court in some circumstances.  One can also request an Administrative Determination from the CSEA.  Finally, the parties can voluntarily acknowledge paternity by filing the appropriate affidavit with a court, as described above.

How do I establish paternity for my baby if a party is not willing to be tested?

If you want to have a paternity test administered and the other party is not willing to be tested, contact the Child Support Enforcement Agency.  Once you request that a paternity test be administered, the agency will order that both parties submit to testing at the department’s lab.  Both the mother and father, as well as the child, will be tested as stated above.  The lab at the CSEA will conduct the test to determine paternity and will send the results to the court and to both parties.  If either party refuses to submit to the DNA test, that refusal will be referred to Court and may result in a contempt of court charge.

Establishing paternity is usually only the first of many issues in a custody/visitation or support proceeding.  Other issues may include the child’s surname, birthing expenses, health insurance coverage and the allocation of the dependency tax exemption.  It is important that if you are involved with these issues that you seek an experienced lawyer to advise you about your rights.

Lately, it seems that I have had more and more of my male clients coming in to see me to discuss issues relating to paternity.  There are so many myths out there about what needs to happen to establish paternity and the possible outcomes of failing to do so, that it never ceases to amaze me!  Perhaps the most serious outcome that many people are unaware of is that a “putative” father can have his child adopted out to someone else without his consent if the appropriate action has not been taken.

In Ohio, a person is presumed to know that if he has had sexual relations with a woman and she becomes pregnant that the child may be adopted without the father’s consent once the child is more than a month old.  As a way to counteract this result, the Ohio State legislature mandated the creation of the Ohio Putative Father Registry.  The purpose of the Registry is that a person who believes that he may have fathered a child can now establish the legal right to be notified of any hearings where the mother either voluntarily or involuntarily gives up custody rights to the child.  The “putative” father may register at any time during the pregnancy up until thirty (30) days after the birth of the child.  After that point it is too late.

This Registry only applies to people who are unmarried and in situations where the father has not established paternity.  If the father is married to the mother and a child is born, he is the legal father of the child absent some other Court determination. If an unwed person establishes paternity, then the “putative” father becomes the “legal father”.  That father is then a necessary party to any proceedings involving custody or adoption of the child.

If paternity has yet to be established, the first step to protect your rights is to obtain a Putative Registry Form either online or by calling the Ohio Department of Job and Family Services.  This form will ask for your name, current address, and other personal information for both you and the mother.  In the event that you do not have the entire mother’s information you should do your best to fill out what you can.  Likewise, if the child has not yet been born, you should give an estimated date of birth based on when you believe the date of conception occurred.  You must then sign and have the form notarized in the presence of a Notary Public.  Once the form is completed, it must be mailed in to the Ohio Department of Job and Family Services, and be received by them no later than thirty (30) days after the birth of the child.

Once you have submitted the form, it is your responsibility to update the information anytime you move.  Additionally, this is not a one-time deal.  Placing your name on the Registry once will not cover you for other children.  What this means is that if you have additional relationships with the same woman, or with other women, you must complete an additional form each time to properly be placed on the Registry.  There is no cost to the person for filling out and completing the form.

For a link to the Ohio Putative Father Registry online registration document, please click here, or call 888-313-3100.  If you want to obtain more technical information about the Registry, click here to read the Ohio Administrative Code section about it.

Fans of football in general, but more particularly fans of the West Virginia University Mountaineers and the Cincinnati Bengals, mourn the untimely loss of Chris Henry on December 17, 2009.  He was just twenty-six (26) years of age.  Henry had a stellar career as a wide receiver at West Virginia University and was drafted by the Cincinnati Bengals in the third (3rd) round of the 2005 draft.  He had some notable off-the-field problems and at least five (5) legal-related incidents but was seemingly back on track with both his football career and life when he sustained an injury to his forearm in mid-season of 2009.  During the Cincinnati-Baltimore game, Chris sustained a fracture to his left forearm and was thereafter placed on the “injured reserve” list.

On the evening of Wednesday, December 16, 2009, there was an incident described as a “domestic dispute” involving Henry and his fiancé, Loleini Tonga. Reports say that Ms. Tonga was attempting to leave a residence in North Carolina when Henry jumped into the bed of the pick-up truck she was driving.  Henry was later thrown from the bed of the truck.  He sustained massive head injuries and died the next morning.

Many legal questions remain.  I shall address them in chronological order:

• It will be most important to determine if Chris Henry had a Last Will and Testament or any other estate planning documents to protect Loleini Tonga and their children. Most persons at the age of twenty-six (26) believe they are invincible and do not need to have estate planning documents in place.
• His fiancé, Loleini Tonga, has no legal rights to anything in his estate, absent a Will, as she was not married to Chris Henry at the time of his death.  As a fiancé of Chris Henry, she has no rights to inherit from his estate unless he provided for her in a Will or a Living Trust document.
• There are reported to be three (3) children that Chris Henry and his fiancé were raising; some news articles indicate that he was the father of only two of them.  If Chris Henry is the biological Father of the children, had paternity been established?  Loleini Tonga would not be eligible to receive Social Security benefits on behalf of the children until or unless paternity is established.  And, now that Chris Henry is deceased, his fiancé may have to try to establish paternity of the three (3) children through the appropriate Juvenile Court in order to seek Social Security benefits on their behalf.  If the children are not born as issue of Chris Henry and Ms. Tonga’s relationship, his estate would not be responsible for them unless Henry had estate planning documents in place to address that issue. More specifically, his will could have specified who he would designate to serve as guardian of the person and/or estate of any minor children he might leave at the time of his death.  His will or trust could also have named a trustee to manage assets on his children’s behalf until they attained an appropriate age to take control themselves over the funds.

Recommendations:

1. If children are born out of wedlock, take immediate steps to establish paternity.  Parents cannot expect to receive child support benefits or Social Security benefits unless paternity is established and the biological father of the child or children has been identified and verified by Court Order.  Just signing the Birth Certificate is not enough to establish paternity in the State of Ohio.
2. If you are a man living in Ohio and believe that you may have impregnated a woman to whom you are not married, then you should consider registering with the Ohio Putative Father Registry.  This is an important step toward establishing paternity and protecting your rights if the mother should decide to put the child up for adoption.  Be sure to register before the child is a month old. Click here to learn more about the Registry and to link to the form that would need to be completed.
3. Regardless of your age, have a Last Will and Testament prepared to establish who shall inherit from you and to establish who shall be responsible for your minor children in the event of your premature demise.  In Ohio, anyone who is mentally competent over the age of eighteen (18) years old can execute a Will.
4. These recommendations are especially important if the fiancé/father is wealthy.  Loleini Tonga and the three (3) children she and Chris Henry were raising may now be in legal “limbo” until it is determined whether or not Chris provided for them in a Last Will and Testament (or other Trust documents) and if the paternity of the children in question had been legally established.

As a graduate of West Virginia University and a Bengal fan, I was personally saddened by his death. Coach Bill Stewart said, “Once a Mountaineer, always a Mountaineer … Chris was a big part of our success during his time here.  For me, he was a real joy to be around on a daily basis.  He came to work and loved to play football.” Bengal teammate Chad Ochocinco said, “My grandma always says you never question the man upstairs on decisions he makes. Everyone makes mistakes, but I don’t see how Chris was supposed to go already, especially when he was on the right path.”

His family shared last week that Chris is helping save the lives of others through organ donation. Life Center, a group that encourages and facilitates organ donation, said that Henry was an organ and cornea donor and that his organs were donated to at least five people. "When it’s a high-profile person or high-profile case, this really brings awareness that, wow, lives were saved as a result of something so tragic," said Andi Johnson, a representative of Life Center. If you are interested in more information on tissue and organ donation in Ohio, click here and you will be directed to the Donate Life Ohio website.

Remember, that each of us needs to have a plan and properly drawn estate planning documents which include how our assets should be distributed and whom we would want to raise our minor children in the event we were not able to do so.  Regardless of our age or physical prowess, none of us are “bullet proof.” It is very important to take all the appropriate steps to protect our loved ones and family members!