Full question:
I live in Delaware, in 2006, I acknowledged paternity for 2 children. Recently, I found out that I am not biological father of the 2 children. In 2010, the other man (real father of the 2 children) filed with the court to claim both children to stand as father of the 2 children, but denied by 13 Del. C. _ 8-609. Limitation: Child having acknowledged or adjudicated father (b). Can we get it done by filing Termination of Parental Rights and adoption? is my ex-wife and the other man's marriage necessary for TPR/adoption, or easier. If it succeeds, then will the other man's name be on the new birth certificates?
- Category: Paternity
- Subcategory: Court Action
- Date:
- State: Delaware
Answer:
The issue you identified is regulated by Delaware Code Title 13, Chapter 8. A civil proceeding may be maintained to adjudicate the parentage of a child.
The relevant sections of the statute include:
§ 8-606. Statute of limitations.
(a) Subject to the provisions of subsection (b) of this section and §§ 8-607 and 8-609 of this title, a proceeding under this subchapter may be commenced at any time until the child reaches the age of majority, except as provided in §§ 501(d) and 503 of this title.
(b) A proceeding to adjudicate the parentage of a child having no presumed, acknowledged, adjudicated or adoptive father may be commenced at any time, even after:
(1) The child becomes an adult but only if the child initiates the proceeding; or
(2) An earlier proceeding to adjudicate paternity has been dismissed based upon the application of a statute of limitation then in effect.
(c) In a proceeding under subsection (b) of this section, the court may deny a motion for genetic testing based on principles of estoppel as established in § 8-608 of this title.
(d) This section shall not extend the time within which a right of inheritance or a right to succession may be asserted beyond the time provided by law relating to distribution and closing of decedents' estates, nor to the determination of heirship, or otherwise.
74 Del. Laws, c. 136, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8-607. Limitation: Child having presumed father.
(a) Except as otherwise provided in subsection (b) of this section, a proceeding brought by a presumed father, the mother or another individual to adjudicate the parentage of a child having a presumed father must be commenced not later than 2 years after the birth of the child.
(b) A proceeding seeking to disprove the father-child relationship between a child and the child's presumed father may be maintained at any time if the Court determines that:
(1) 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
(2) The presumed father never openly held out the child as his own.
74 Del. Laws, c. 136, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8-608. Authority to deny motion for genetic testing.
(a) In a proceeding to adjudicate the parentage of a child having a presumed father or to challenge the paternity of a child having an acknowledged father, the court may deny a motion seeking an order for genetic testing of the mother, the child and the presumed or acknowledged father if the court determines that:
(1) The conduct of the mother or the presumed or acknowledged father estops that party from denying parentage; and
(2) It would be inequitable to disprove the father-child relationship between the child and the presumed or acknowledged father.
(b) In determining whether to deny a motion seeking an order for genetic testing under this section, the court shall consider the best interest of the child, including the following factors:
(1) The length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;
(2) The length of time during which the presumed or acknowledged father has assumed the role of father of the child;
(3) The facts surrounding the presumed or acknowledged father's discovery of his possible nonpaternity;
(4) The nature of the relationship between the child and the presumed or acknowledged father;
(5) The age of the child;
(6) The harm that may result to the child if presumed or acknowledged paternity is successfully disproved;
(7) The nature of the relationship between the child and any alleged father;
(8) The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and
(9) Other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child.
(c) In a proceeding involving the application of this section, a minor or incapacitated child must be represented by a guardian ad litem.
(d) Denial of a motion seeking an order for genetic testing must be based on clear and convincing evidence.
(e) If the court denies a motion seeking an order for genetic testing, it shall issue an order adjudicating the presumed or acknowledged father to be the father of the child.
74 Del. Laws, c. 136, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8-609. Limitation: Child having acknowledged or adjudicated father.
(a) If a child has an acknowledged father, a signatory to the acknowledgment of paternity or denial of paternity may commence a proceeding seeking to rescind the acknowledgment or denial or challenge the paternity of the child only within the time allowed under §§ 8-307 or 8-308 of this title.
(b) If a child has an acknowledged father or an adjudicated father, an individual who is neither a signatory to the acknowledgment of paternity nor a party to the adjudication and who seeks an adjudication of paternity of the child must commence a proceeding not later than 2 years after the effective date of the acknowledgment or adjudication.
(c) A proceeding under this section is subject to the application of the principles of estoppel established in § 8-608 of this title.
74 Del. Laws, c. 136, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8-631. Rules for adjudication of paternity.
The court shall apply the following rules to adjudicate the paternity of a child:
(1) The paternity of a child having a presumed, acknowledged or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.
(2) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man identified as the father of a child under § 8-505 of this title must be adjudicated the father of the child.
(3) If the court finds that genetic testing under § 8-505 of this title neither identifies nor excludes a man as the father of a child, the court may not dismiss the proceeding. In that event, the results of genetic testing, and other evidence, are admissible to adjudicate the issue of paternity.
(4) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man excluded as the father of a child by genetic testing must be adjudicated not to be the father of the child.
§ 8-636. Order adjudicating parentage.
(a) The court shall issue an order adjudicating whether a man alleged or claiming to be the father is the parent of the child.
(b) An order adjudicating parentage must identify the child by name and date of birth.
(c) Except as otherwise provided in subsection (d) of this section, the court may assess filing fees, reasonable attorney's fees, fees for genetic testing, other costs and necessary travel and other reasonable expenses incurred in a proceeding under this subchapter. The court may award attorney's fees, which may be paid directly to the attorney, who may enforce the order in the attorney's own name.
(d) The court may not assess fees, costs or expenses against the support-enforcement agency of this State or another state, except as provided by other law.
(e) On request of a party and for good cause shown, the court may order that the name of the child be changed.
(f) If the order of the court is at variance with the child's birth certificate, the court shall order the Office of Vital Statistics to issue an amended birth registration.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
