Out-of-wedlock births are reaching epidemic levels with some observers predicting that more than half of the children born in the year 2004 will be born out-of-wedlock.
Most states require that paternity be established by a “preponderance of the evidence,” meaning that paternity (or lack of paternity) is “more likely than not.” They call this the 50.01% test, meaning that if evidence is even slightly greater than 50-50, it constitutes a “preponderance of evidence.” Some states insist on a higher standard, known as the “clear and convincing evidence” test. This test is more stringent (harder to overcome) than the “preponderance” test, but not as strict as the “beyond a reasonable doubt” test, the standard in a criminal case.
Whatever the burden of proof on a person asserting or denying paternity, recent developments in DNA testing may make these distinctions irrelevant. With proper testing, most cases are decided on scientific evidence that is almost 100% accurate.
The following materials explain the mechanics of DNA testing. They are not meant as legal advice. However, every state has a mechanism to establish or deny paternity. In Arizona, refer to ARS 25-801 et seq>>>
The Arizona Statute
25-807. Precedence of maternity and paternity proceedings; delay for blood or tissue tests; court order; evidentiary use; alternative tests
A. Proceedings to establish maternity and paternity shall have precedence over other civil proceedings. The case shall be set for trial within sixty days from the filing of an answer or oral denial by the defendant.
B. A delay in determining paternity in an action commenced prior to the birth of the child shall be granted until after the birth of the child for purposes of paternity tests if any party to the proceedings requests.
C. The court, on its own motion, or on motion of any party to the proceedings, shall order the mother, her child or children and the alleged father to submit to the drawing of blood samples or the taking of deoxyribonucleic acid probe samples, or both, and shall direct that inherited characteristics, including but not limited to blood and tissue type, be determined by appropriate testing procedures. An expert duly qualified as an examiner of genetic markers shall be agreed upon by the parties or appointed by the court to analyze and interpret the results and report to the court.
D. If the results of the blood tests indicate that the likelihood of the alleged father’s paternity is ninety-five per cent or greater, the alleged father is presumed to be the parent of the child and the party opposing the establishment of the alleged father’s paternity shall establish by clear and convincing evidence that the alleged father is not the father of the child.
E. The examiner’s report shall be admitted at trial unless a timely written challenge to the examiner’s report is filed with the court within twenty-one days of the initial trial date. If the results of the examiner’s report have been challenged and on the reasonable request of a party, the court shall order an additional test to be made by the same laboratory or an independent laboratory at the expense of the party requesting additional testing.
F. If a timely written challenge is not filed pursuant to subsection E, the examiner’s report is admissible in evidence without the need for foundation testimony or other proof of authenticity or accuracy.
G. The court shall, on application of either party, determine the proportion and time in which the initial test costs shall be paid.
H. On motion of a party to the proceedings, the court may order that experts perform alternative or additional tests including medical, scientific and genetic tests.
ABO Blood Types and Parentage
ABO blood typing can give some preliminary indications about possible paternity. Its use is limited, however, because there are only four possible types, and the vast majority of people in any population has only two of those types (A and O). This means that a man may have a type consistent with paternity and still not be the father of the tested child. More modern genetic tests, such as DNA typing, will lead to a more reliable conclusion regarding paternity.
Because the gene for the O type can be masked by the genes for A or B, inheritance of blood type can be unclear to the layman.
If you need assistance please contact us for a free consultation.