Potential Barriers in Getting DNA Test Orders in Paternity Cases

Interviewer: What are some barriers that someone may face now that the process has been changed? What are some of the barriers someone might face anyway?

Jeanne Morales: You do have to have this determination, this new evidence, this new assumption that you’re not a dad. You need to act on it. There is a deadline on that, so for example, say the couple is not married but their child is born, they have a good relationship, and there’s no reason at that time for the gentleman to believe that he’s not the father, so he signs all the necessarily paperwork.

Relationships being what they are, let’s just say five years later they slip up and he has to pay child support. As kids go from toddlers to children their physical characteristics have a tendency to change and at some point he starts thinking that the child doesn’t even look like him. When the baby grows up it has red hair and nobody in his family has red hair. He can go to a judge with that and say, “I want the DNA test.”

If he’s had those doubts for more than two years the judge might say, “Look, once you developed the suspicions that you weren’t the dad, you had a two year window to be able to bring this challenge and you didn’t do it and so therefore I’m not going to order a DNA test.”

There has been at least one case where that happened. It wasn’t just based so much on the kid having red hair. The man had unofficially gotten a DNA test. You can get these kits online. So he knew; he didn’t have a suspicion. He knew he wasn’t the child’s dad and he waited more than two years to bring the lawsuit. The judge threw it out saying, “We know exactly when you knew this wasn’t your child and you slept on your rights.”

That’s a common talisman of the law: those who sleep on their rights are doomed to lose them. So once you have an indication – maybe the birth mother says something offhand to the individual or people starts saying as this kid gets older that he doesn’t look like you – you should move forward with requesting the DNA test. There could be lots of indicators.

There are some people who go out and individually purchase a DNA test and realize that the child’s not theirs. They don’t know what the next step is. Well, the next step is within two years you have to file a suit in family court and ask the court to order an official DNA test. If that comes out, it’s all over as far as the determination of paternity.

Two-Year Waiting Window

Interviewer: Now, you said that there is a two-year window, right?

Jeanne Morales: Yes, from the time you first believed that the child might not be yours.

Interviewer: Now, that doesn’t mean that it has the two-year window if the child is eight, for instance. Is that correct?

Jeanne Morales: Correct. So, what I believe the legislation was trying to correct was this: a baby’s born and often times in the early part of a child’s life, people are in love with the idea of creation. Also, the relationship between the adults that made that child is usually better at that point.

The alleged father is being told that he’s now accomplished some major life milestone by fathering a child, so maybe he’s not in a frame of mind to question that or he doesn’t think he has a reason to do so, and so he just starts filing papers and handing out cigars without properly following up on his rights and demanding a DNA test.

Again, because of the nature of adult human relationships, a lot of marriages and a lot of people who are involved in personal relationships aren’t married, and a lot of relationships don’t last. When they stop working, a lot times there are hurt feelings, things are said, and ultimately somebody often will end up in a lot of money for the person who’s giving custody of the child, which a lot of times is the woman.

Whether that’s two years, three years, eight years later, if he at some point develops the idea that he’s paying all this child support and he doesn’t even think it’s his kid, then he has two years from that point to bring a lawsuit to ask a judge for a DNA test.