The Basics of Filing for Paternity in Nebraska
If you are married, then the question posed by the title is not one your children usually need to confront. Such minors born during the marriage are presumed legitimate, and therefore the children of the spouses. However, it is just as important for children born to unmarried persons to know their father throughout their lives. To do so, in Nebraska you must file an action to establish paternity of that child. The following are some basic points to consider if you are a party involved in a paternity action.
Authorized Parties: Nebraska paternity actions are purely statutory in nature, and not based on common law. Therefore, you must first be an authorized party under the statute prior to filing a paternity action. In Nebraska, the persons authorized to file for paternity of a child are the: a) child’s mother; b) alleged father(s); c) state; or, d) child’s guardian or next friend. The majority of paternity actions are filed by either parent. In cases where the child’s mother is receiving state assistance, also known as a Title IV-D case, they will bring an action against a biological father who is responsible for financial support. In all cases, unless paternity is admitted by the alleged father or he has signed an acknowledgement of paternity, the alleged father has the opportunity to deny his paternity and submit to genetic testing.
The Clock is Ticking: There is no time limit to file a paternity action if filed by the state or a guardian/next friend of the child. However, if either parent wants to establish paternity they have a 4-year window from birth to file their complaint for paternity. If you suspect you are a child’s father or are a mother seeking custody and support from the alleged father do not sit on your rights. After 4 years you are statutorily barred from filing for paternity. In such a case, a putative father would have to file his paternity action as the child’s guardian or next friend.
Paternity is Not Custody: If the state is the party filing to establish paternity they are prohibited from taking a position on what custody arrangement, if any, is in the child’s best interest. Therefore, if you are served with a complaint alleging you are the father, and paternity is subsequently established, this does not grant you custody of your child. If you are served with a complaint as the putative father and wish to establish custody you should contact an attorney to file a custody counterclaim, and also add the child’s mother as a necessary 3rd party. Otherwise, only your paternity and support obligations will be established.
The Hard Reality: The statutes, as written and interpreted by the Nebraska Supreme Court, do not allow for either a putative father or the state to establish paternity of a child conceived or born during a marriage. The plain language of the statute says that the marital presumption of legitimacy is rebuttable. However, the Supreme Court has strictly interpreted the paternity statutes to define a “child” subject to a paternity action as one who is “born out of wedlock.” The statute further defines a “born out of wedlock child” as one whose parents are not married. The Court has found the presumption of legitimacy to mean that a child born during marriage is born “in wedlock.” This interpretation of these statutes by the Court currently bars both putative fathers and the state from filing for paternity of children born during a marriage.
These are just some of the basic points to keep in mind when filing a paternity action in Nebraska. Having a good understanding of these and other points is essential if you want your child to know their father. For further assistance and advice with your paternity action, please contact the attorneys at Slowiaczek Albers & Whelan, PC, LLO to schedule your initial consultation.