Family Law, Paternity Disputes and Genetic Testing

by | Jun 22, 2023 | Divorce

The recent scandal involving President Biden’s son, Hunter, and his child-producing affair with Lunden Roberts, has once again brought the legality of establishing paternity through genetic testing to the forefront of the public eye.  

Ms. Roberts alleged that her daughter, Navy Joan, was Hunter’s child and sued him for child support. Hunter denied the allegation. To settle the “he said, she said” dispute, a DNA paternity test was court-ordered. The results showed a greater than 99% certainty that Hunter was, indeed, Navy Joan’s father, and he was ordered to begin paying child support.

This paternity dispute showcases the impact of being able to determine parentage. In this case, the mother wanted child support assistance, but the biological father did not want to pay it. Sometimes the roles are reversed: the father wants to be involved in his child’s life, but the mother (or another presumed father) wants to block that possibility. There are several reasons why DNA paternity testing becomes useful for a child both in and out of the family law context, including:

  • Child custody rights and support obligations;
  • Access to Social Security and Veterans Administration benefits;
  • Inclusion in health and life insurance policies;
  • Confirming immigration eligibility;
  • Establishing rights of inheritance.

There are other potential benefits to the child as well, such as health and medical benefits. For example, the more we understand the role our genes play in putting us at risk for certain diseases, the more we value early detection leading to possible aid and treatment of that disease.

Psychologically, genetic testing yields mixed results for both the child and parents. Some receive closure when they know who their father really is or, conversely, that they truly are (or are not) the father of a particular child. Some encounter an identity crisis when they discover that their “father” who raised them is not their father at all. For others, especially if the child is the product of a rape, the process of testing creates a point of contact with the perpetrator and can cause emotional trauma for both the child and the mother.

Whatever the reasons may be for taking a test, and whatever the legal or psychological ramifications may be, genetic testing has become the leading way of establishing, with amazing reliability, an individual’s own genetic identity and their true biological relationships.

How Does Genetic Testing Work?

Your DNA is like a library; it contains all the information (in the form of chemical “genes”) that makes you a unique person. Even identical twins do not always share 100% identical DNA (as mutations may occur). As you develop in the womb, it is your DNA that provides the instructions on how to build you. Many traits are common to all humans, but many others are variable; many traits are visible, and many are purely chemical.

Your unique DNA was inherited from your parents; one-half of your mother’s DNA and one-half of your father’s DNA combined to form your DNA. Sometimes genetic mutations occur in the process, which alter one or another part of the genetic material, meaning that what you received from each parent was already not a 100% replica of their DNA. Nevertheless, if your DNA is sequenced and then compared to that of each of your parents, at any given gene pair, it is expected that one gene will be the same as one of your mother’s and the second will be the same as one of your father’s.  

The more gene pairs show this pattern, the greater the certainty of a genetic match, but it is not necessary to sequence the entire genome to establish paternity. Typically, only about 20 “marker genes” are needed to obtain a 99.99% certainty of a biological relationship. To test more than this would increase the time and escalate the cost without significantly increasing the certainty of the results.

Using Genetic Testing To Establish Paternity

DNA sequencing services are becoming increasingly popular as people’s interest is piqued to discover their “family tree.” Those tests are generally ordered by the consumer and sent to their home, where the DNA material is collected and then mailed back to the lab, with results becoming available usually within weeks.

Those sorts of private, self-administered tests may be used informally to establish paternity, but they may not be used for any legal purposes. To be used legally, the sample must be obtained by a licensed third party and subsequently be handled according to strict chain of custody protocols.

A cheek swab to get a saliva sample is generally sufficient to obtain a person’s DNA. Blood samples can also be used. If a preborn child’s DNA is required, called a “prenatal paternity test,” the method used to obtain the sample depends on the stage of pregnancy:

  • In the first trimester, starting about week 7, a Noninvasive Prenatal Paternity Test (NIPP) obtains fetal DNA from a sample of the mother’s blood;
  • Between weeks 10 and 13, a Chorionic Villus Sampling (CVS) can retrieve a small sample of the placenta either through the mother’s cervix or through her abdomen;
  • Between weeks 13 and 20, an amniocentesis obtains a sample of the amniotic fluid through the mother’s abdomen.

The CVS and amniocentesis are both forms of invasive prenatal paternity tests. Generally, they are considered safe for both mother and child, although there can be some risk of miscarriage as a result.

Do I Need A Court Order First For A Genetic Paternity Test To Be Legally Valid?

Parents can voluntarily submit to genetic testing to establish paternity without a court order at any time. However, in order to obtain a Judgment from a court that legally establishes paternity, the DNA test must meet all of the legal requirements for approved genetic testing discussed above. A court order may be necessary if one or the other parent is uncooperative and refuses to voluntarily submit to genetic testing.

How Much Does A Paternity DNA Test Cost?

The costs of a paternity DNA test will naturally depend on the type of test and the lab that provides it. An at-home (non-legal) test may cost from $130 – $200. A lab-administered (legal) test will cost from $300 – $500. Prenatal paternity tests cost much more, ranging from around $ 1700 for an NIPP, $3,000 for a CVS, to over $4,000 for an amniocentesis.

If a test is taken for medical purposes, health insurance policies will typically cover the costs. If a test is for paternity disputes only, those costs will not be covered by insurance.

What Do I Do Now?

If you are involved in a paternity dispute, especially if your partner is uncooperative, the competent and experienced family law attorneys at Hoover Krepelka can advise you on your legal rights and obligations and guide you through the process of obtaining a legally valid genetic paternity test to resolve that dispute.  Contact us today.

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to schedule a consultation (408) 947-7600

*The above is not meant to be legal advice, and every case is different. Feel free to reach out to us at Hoover Krepelka, LLP, if you have any questions. Information contained in this content and website should not be relied on as legal advice. You should consult an attorney for advice on your specific situation. 

Visiting this site or relying on information gleaned from the site does not create an attorney-client relationship. The content on this website is the property of Hoover Krepelka, LLP and may not be used without the written consent thereof.


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