April 2009 Bar Bulletin
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
What if the wife was pregnant when the couple married and the husband did not have sex with the wife during the conception period?
The husband is the presumed father.9 There is no requirement that the husband be the biological father if the child was born during the marriage.
What if the husband wants to determine if the child is his biological child and the child is 18 months old? Or 25 months old?
The husband is the presumed father, so he must bring an action within two years after the birth of the child, unless the presumed father and the mother of the child “neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception” and “the presumed father never openly treated the child as his own.”10
Therefore, the husband can file a paternity action any time before the child’s second birthday. If the child is 25 months old, the husband cannot contest paternity except pursuant to RCW § 26.26.530. The issue of whether a husband has acted as a father to the child is fact specific and for the court to decide.
What is the difference between an alleged father, a presumed father, an acknowledged father and an adjudicated father?
An alleged father contends or is alleged to be a possible father to a child.11 The statute does not require that the allegation has to be made by the mother.
A presumed father is one who is legally presumed to be the father under RCW § 26.26.116. The presumption is established by several fact situations. This includes a man who is either:
- married to the mother when the child is born;
- was married to the mother and the child is born within 300 days after the marriage terminated;
- before the birth of the child, the man attempted to marry the mother, even if the marriage is, or could be, declared invalid;
- the man has agreed to be named as the child’s father on the birth certificate; or
- the man has promised in a record to support the child as his own. An adjudicated father is one who has been adjudicated by a court of competent jurisdiction to be the father of the child.12 The adjudication can be during a dissolution proceeding or a paternity action.
Does a child have to bring a paternity action within two years if there is a presumed father?
No. RCW § 26.26.540(2) expressly states that “an individual, other than the child … must commence a proceeding not later than two years after the effective date of the acknowledgement or adjudication.” The child may bring an action at any time. However, as noted above, the child is bound by a determination of paternity that comports with RCW § 26.26.630.
Lisa Dufour is a senior deputy prosecuting attorney in the Family Support Division of the King County Prosecuting Attorney’s Office. She is the lead deputy in the Special Collections Unit for Child Support Enforcement.
1 In re Parentage and Support of M.K.M.R., 148 Wn. App. 383 (2009).
2 Id. at 391.
3 Id. at 390-91.
4 In re Parentage of Q.A.L., 146 Wn. App. 631, 636-37 (2008).
5 RCW §§ 26.26.555(1), 26.26.630.
6 RCW § 26.26.630.
8 RCW §§ 26.26.011(15), 26.26.116.
10 RCW § 26.26.530.
11 RCW § 26.26.011(3).
12 RCW § 26.26.011(2).