The Presumption of Paternity

The Presumption of Paternity, A look at Colorado Revised Statute 19-4-107

Most people think that genetic testing alone establishes paternity.  This is not true in Colorado.  Genetic testing, in fact, is only one of the possible factors that results in a presumption of paternity. A man is presumed to be the natural father of a child in each of following circumstances:

• He and the child's natural mother were married and the child was born during the marriage or within three hundred days after the marriage is terminated by death, annulment, divorce, or after a decree of legal separation is entered by a court;

• After the child's birth, he and the child's natural mother married, and

• He has acknowledged his paternity of the child in writing filed with the court or registrar of vital statistics, if such acknowledgment has not previously become a legal finding;. or
• With his consent, he is named as the child's father on the child's birth certificate; or
• He is obligated to support the child under a written voluntary promise or by court order or by an administrative order issued pursuant to section 26-13.5-110, C.R.S.

• While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child.

• He acknowledges his paternity of the child in a writing filed with the court or registrar of vital statistics, which shall promptly inform the mother of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the court or registrar of vital statistics, if such acknowledgment has not previously become a legal finding.  (If another man is presumed to be the child's father, the written consent of the presumed father must be obtained or the presumption must be rebutted in order for the "acknowledgement" to be effective).

• The genetic tests result in a 97% or higher probability that he is the biological father.

            These presumptions may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which, on the facts, is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man. In determining which of two or more conflicting presumptions should control, based upon the weightier considerations of policy and logic, the judge or magistrate shall consider all pertinent factors, including but not limited to the following:

• The length of time between the proceeding to determine parentage and the time that the presumed father was placed on notice that he might not be the genetic father;

• The length of time during which the presumed father has assumed the role of father of the child;

• The facts surrounding the presumed father's discovery of his possible non-paternity;

• The nature of the father-child relationship;

• The age of the child;

• The relationship of the child to any presumed father or fathers;

• 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

• Any other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed father or fathers or the chance of other harm to the child.

In most instances, a legal finding of paternity may be challenged in court only on the basis of fraud, duress, or mistake of material fact, with the burden of proof upon the challenger. Any legal responsibilities resulting from signing an acknowledgment of paternity, including child support obligations, shall continue during any challenge to the finding of paternity, except for good cause shown.