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A new decision from Division II, Parentage of Sec, docket no. 38883-9, held that a court must determine that DNA testing is in the child’s best interest before ordering the testing.
The case pitted a presumptive father against a putative biological father. Washington law presumes that a man is a child’s father if the parents were married when the child was born. It also permits a proceeding to disprove a presumptive relationship if: a) the presumed father and the mother neither cohabitated nor engaged in sexual intercourse with each other during the probable time of conception, and b) the presumed father never openly treated the child as his own.
This provision also authorizes a court to require genetic testing, if such testing would be in the child’s best interest.
Here, the putative biological father filed a motion to disestablish the presumptive relationship. In the course of that proceeding, the court ordered the parties to submit to genetic testing. The child and the presumptive father did not comply with the order.
On appeal, the court held the order invalid, because it was issued without the requisite hearing to determine whether such testing was in the child’s best interest.

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A new case from the court of appeals, In Re Parentage of M.K.R., 61138, division I, held that DCS has standing to file a petition challenging paternity whether or not there is a presumed father.

The ruling is a victory for the common-sense proposition that the actual father, as determined by DNA testing, ought to be liable for child support, as opposed to the presumed father, as determined by the person who was married to the mother at the time of the child’s birth.

The Washington Uniform Parentage Act, RCW 26.26 et. seq., makes a man the presumptive father of any child born to his spouse during marriage. That presumption becomes irrebuttable after two years, meaning that the husband becomes the legal father, even if he isn’t the biological father, if he fails to challenge paternity within two years.

However, at least four other parties have an interest in a given child’s paternity: the child, the state, the mother, and any other potential father. The child’s interest and the parent’s interests are fairly obvious. The state’s primary interest is the collection of child support so the child won’t go on welfare.

By statute, all these parties have standing to adjudicate their interests. This case clarifies that the state (DCS) has standing whether or not there is a presumed father. In this case, the presumed father neglected to deny paternity within the two year deadline. However, DCS did file within the two-year deadline.

The biological father, who did not want to be stuck with child support, argued that the presumed father’s failure to timely file was fatal and the presumed father was stuck with paying child support for someone else’s child.

The presumed father, on the other hand, argued that DCS’ timely filing of the petition effectively kept the window open for him, allowing him to avoid child support and make the biological father pay. The trial court agreed with the biological father.

The appellate court reversed.

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A decision from early September, In Re: Parentage of Q.A.L., docket No. 35664-2 (Div. 2, Sept. 3, 2008), held that a child has a constitutional right to participate in a proceeding regarding his own paternity. To protect this right, the child is entitled to a court-appointed guardian ad litem.

The decision modifies black-letter statutory law. Under the paternity statute, an unacknowledged father has only two years to file a paternity action where someone else has been either acknowledged or adjudicated the father.

In this case, the unacknowledged father filed the paternity action two months after he got the results of a paternity test showing that he was the father but missed the statutory two-year deadline. The court waived the deadline because the child had a constitutional interest in the outcome of the paternity action, which trumped the statutory deadline.

One of these interests was the child’s Native American heritage. The unacknowledged father was Native American. Native American rights, including rights of inheritance and the right to enroll in a federally recognized Indian Tribe go to the child regardless of the legal relationship of the Native American parent to the child.

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