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It is a well-known trope, and sometimes a real-life situation: A man raises a child for years, then discovers, by admission or DNA testing, that he is not actually that child’s biological father. What happens after that? Is he no longer legally responsible for that child? What are his rights as to custody or visitation with the child if he is not the biological father?

Chapter 126 of the Nevada Revised Statutes addresses parentage and paternity. Nevada law does not restrict paternity to biological parents. NRS 126.051(1) outlines the different ways a man can be presumed to be the “natural father” of a child. These presumptions include:

  1. The man and the child’s mother are or were married to each other, and the child is either born during the marriage or within 285 days after the marriage is ended, either by death, annulment, or divorce;
  2. The man and the child’s mother cohabitated for at least six months prior to conception of the child and continued to cohabit “through the period of conception;”
  3. The man and the child’s mother attempted to marry each other prior to the child’s birth, even if the marriage was later found to be invalid, and the child is born during the marriage or within 285 days after the marriage is ended, or, if the marriage is invalid without a court order, within 285 days after the parents stopped living together; or
  4. While the child under the age of majority (i.e., under 18 years old or still in high school), the man “receives the child into his home and openly holds out the child as his natural child.”

In addition to these presumptions, NRS 126.051(2) states that there is a “conclusive presumption” that a man is the natural father of a child if a DNA test shows he has a father. There is an interesting caveat to that presumption in the statute, which is that the presumption “may be rebutted if [the man] establishes that he has an identical sibling who may be the father.”

What happens if there is a man who is determined to be the child’s father via DNA test, but the man who has been raising the child as his own is a different person? Subsection (3) of the statute states that a presumption under subsection (1) “may be rebutted … only by clear and convincing evidence,” and that if two or more conflicting presumptions arise, “the presumption which on the facts is founded on the weightier considerations of policy and logic controls.”

There is also the option of a “voluntary acknowledgement of paternity.” This involves a form from the State Board of Health, and NRS 126.053 states that such an acknowledgment is “deemed to have the same effect as a judgment or order of a court determining the existence of the relationship of parent and child.”

There is a period, however, during which a person who signs such an acknowledgment may rescind it. The statute states that it may be rescinded within 60 days after the acknowledgement is signed by both parents, or before the date set for a hearing “relating to the child if that person is a party to the proceeding,” whichever occurs earlier.

After the period during which a person is able to rescind the agreement, the statute states that the acknowledgment “may not be challenged except upon the grounds of fraud, duress or material mistake of fact.”

In Love v. Love, 114 Nev. 572, 959 P.2d 523 (1998), two married parents of a child entered into a divorce settlement arranging for child support. Several years later, the man discovered that he was not the child’s biological child due to a DNA test, and he requested that the court eliminate his child support obligation due to the results of the paternity test, arguing that his former wife had fraudulently misrepresented that the child was his biological child. The district court found that the father’s paternity had been established by the divorce decree and that he still had to pay child support, and the father appealed.

The Nevada Supreme Court stated that the decree of divorce did not necessarily bar the father from proving nonpaternity due to his allegations of fraud. The Court also noted that NRS 126.051 “does not set forth conclusive presumptions of paternity” because the presumptions outlined in section (1) “may be rebutted.” The court stated that the statute “clearly reflects the legislature’s intent to allow nonbiological factors to become critical in a paternity determination.”

A more recent case sheds more light on the court’s analysis of parentage, albeit with different facts. In St. Mary v. Damon, 129 Nev. 647, 309 P.3d 1027 (2013), two women in a relationship entered into a co-parenting agreement, and St. Mary gave birth to a child through in vitro fertilization, using Damon’s egg and an anonymous sperm donor. After their relationship ended, they had a conflict regarding who had custodial rights to the child.

The district court relied on a previous order recognizing Damon as the child’s legal mother, while finding that St. Mary was, essentially, a “surrogate.” On appeal, the Nevada Supreme Court found this was in error. The Court noted that “the relationship between a parent and a child is of fundamental societal and constitutional dimension.” The Court also stated that, in considering the procedures for proving or rebutting paternity presumptions, “the best interest of the child is the paramount concern in determining the custody and care of children.”

The Court found that NRS 126.051, though it discusses paternity as opposed to maternity, “arguably applies in maternity cases,” but the Court would not read it as meaning a “clear legislative intent to deprive a child conceived by artificial insemination of the emotional, financial, and physical support of an intended mother” who had a hand in bringing the child into the world. The Court concluded that “generally, a child’s best interest is served by maintaining two actively involved parents.” The Court ordered that Nevada law did not preclude both St. Mary and Damon from being considered legal mothers of the child.

Going back to the original question – what happens when a man raises a child, then discovers he is not the child’s biological father? Based on Nevada case law, in summary, that does not necessarily mean that man loses his custodial and parental rights to that child. The court must, in such a situation, do an analysis of several different factors, including what is best for the child. Simply put, a positive or negative DNA test is not the “be-all and end-all” of paternity.

If you have questions pertaining to the paternity of a child and who may be a “legal father” of a child, an experienced family law attorney can help analyze your case to help you determine your best course of action and what you might expect if you file a court action.

 

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