The question of a child’s paternity usually comes into issue when a mother seeks child support from a man she believes to be the father and there are doubts on the part of the mother, father and/or the child as to paternity. 

It can also be important because under the Family Protection Act, a child may also make a claim against their father’s Estate if that child has been left out of the father’s Will, or under the Administration Act if the father had no Will. 

There are two main options for establishing paternity; orders or declarations.  Which course of action is better depends on who is making the application, whether the parties are inside or outside New Zealand, whether the alleged father is alive, how old the child is, and what the purpose of the application is.  

The brief summary of orders and declaration below, will help you to decide which course of action is best for you.

Establishing Paternity - Paternity Orders

1.     Decided under the Family Proceedings Act, and dealt with in the Family Court.

2.     Only the mother or the following of her representatives can apply for a Paternity Order:

a.     Day-to-day care giver if the mother is under 16; or

b.    A social worker if the mother has agreed in writing;

c.     If the mother has died, abandoned the child or is unable to make an application herself, then a parent of the mother, guardian of the child, social worker, or any other person (with the court’s permission) can apply.

3.     Either the mother or father needs to live in New Zealand, or if the mother has died then the child must live in New Zealand.

4.     The Family Court can only make a Paternity Order against living persons.

5.     An application for a Paternity Order can only be made if a child is under 6 years old, but this timeframe can be extended if the prospective father has previously stated that he is the father, if he has paid child support or maintenance, or if he has lived with the mother in the 2 years before the application.

6.     The consequences of an Order are primarily financial in nature and can include responsibility to pay for a deceased child’s funeral expenses, pregnancy and birth expenses, and/or maintenance to the other parent. A Paternity Order will also make a father liable to pay formal child support under the Child Support Act.

 

Establishing Paternity – Declaration of Paternity/Non-Paternity

1.     A Declaration is made under the Status of Children Act and can be dealt with in the Family Court or High Court.

2.     The following persons can apply for a Declaration:

a.     A man who believes he is the father;

b.    A man who believes he is not the father;

c.     A woman who believes a man is the father of her child;

d.    A person (with a proper interest), who wants to prove a man is or is not the father.

3.     It does not matter whether the child was born in New Zealand or not, and whether or not the child's father or mother have ever been domiciled in New Zealand.

4.     There is no time limit to apply for a Declaration of Paternity (or Non-Paternity), under the Status of Children Act.

5.     A Declaration can be made even if the man alleged to be the father (or not the father) has died. 

6.     Only a Declaration of Paternity made under the Status of Children Act is conclusive proof of a child’s paternity and cannot be overcome.  The Status of Children Act will however consider the following, as prima facie evidence of paternity, meaning that paternity can be inferred unless the evidence is disproved:

a.     The child's birth register shows the name of the father of the child; or

b.    There is another instrument signed by the mother of the child and by a person acknowledging that they are the father of the child, (must be a Deed, or signed by each party in the presence of a solicitor); or

c.     A Paternity Order made under the Family Proceedings Act 1980; or

d.    An order made by a (specified) Court or public authority in a specified country outside New Zealand declaring a person to be the father of a child.

7.     The effects of a Declaration is further reaching than an order, as the individual declared to be the father of the child in question is that child’s father for all legal purposes including guardianship decisions.

Proving Paternity

You will need to give evidence for the Court to consider whether the Order or Declaration should be made.  The Court must be convinced “that it is more likely that not” that the man in question is, or is not the biological father. The more evidence the Court has available to it the better. 

The Court may also recommend a DNA test to help determine paternity.  The costs of DNA testing often are shared between the parties.  Legal Aid is available in some circumstances.  If a man refuses a DNA test, the Court can take this into account when making its decision.