Post Mortem Paternity Suit
How can the paternity of a child be determined when the fatheris not alive?
An unmarried couple conceived a child, and the father died one week after the child was born, but before the couple had the opportunity to register the father’s name at the Ministry of Interior. The mother tried to register the name of the father, but the Ministry of Interior refused on the basis that the identity of the father cannot be proven. The woman was instructed to file for a post mortem paternity suit.
This is one of many examples of a situation where a father is not alive and not registered in their child’s Birth Certificate. If the mother, in such a situation, wishes the have the authorities recognize the father as the parent of the child, she will have to file a post mortem paternity suit at Family Court. This type of suit is complex, and leads to several quandaries: Is it at all possible to file a paternity suit for a deceased person at Family Court? How does the court make a decision in a post mortem paternity suit? What are the considerations that the court takes into account in a post mortem paternity suit? Does the body need to be exhumed to determine whether the father is the biological father, or can other family members be suitable for genetic testing?
We will try to answer these questions in this article.
The court considerations in determining post mortem paternity suite
A post mortem paternity suit should be filed with the family court that has the jurisdiction in the area where the child resides. A post mortem paternity suit is complex due to the fact that the father is deceased, therefore cannot give statement in the matter – whether he denies the suit or claims that he is the biological father of the child. In this type of suit, the court will rule after determining the best interest of the child. Examining the child’s best interest is carried out based on the circumstances surrounding the case, testimonies and the evidencethat led the parties to the suit, as well as observations of court appointed professionals such as social workers and clinical psychologists.
Can the court rule in a paternity suit based on tissue testing of relatives of the deceased?
As a general rule, the easiest method to determine if a man is the biological father of a child is by tissue testing of both the parents and the child. This becomes complicated when the father is deceased. Exhuming a body for the purpose of tissue testing is a complicated procedure and involves great heartache to the family of the deceased, who may not be willing to have the body exhumed for a paternity suit. Furthermore, as the years go by, it becomes more difficult to determine parenthood based on genetic testing.
The solution is tissue testing of relatives of the deceased. With the progress of science, the court can now determine whether the deceased was the biological father based on tissue testing of his immediate relative, such as parents and siblings. The advantage gained by testing the immediate relatives of the deceased (versus exhuming the body of the deceased) is that the procedure for the test is non-invasive, more expedient and accurate enough to determine whether the deceased was the father of the child. Furthermore, tissue testing of the relatives does not require the complex procedure of exhuming the body and all that it entails.
Can parents be obligated to exhume their son’s body due to a post mortem paternity suit?
Tissue testing of relatives of the deceased is the ideal solution for a post mortem paternity suit, when the family of the deceased does not want to have the alleged father’s body exhumed. However, what if the relatives of the deceased are unwilling to undergo the tissue testing? Can the court order the body to be exhumed if the parents and or relatives are against it?
The answer is yes. The court has debated in the past in a post mortem paternity suit where the relatives of the deceased refused to provide tissue testing and ruled that the body of the alleged father be exhumed because it was for the best interest of the child to know who their father was.
Can the court rule in a post mortem paternity suit without tissue testing?
Generally, family court has the jurisdiction to decide who the biological father is in a post mortem paternity suit, even without tissue testing. That being said, these are extreme circumstances, and the mother must bring strong evidence and testimony that the deceased is the father of the child, to convince the court that there is no doubt that the deceased is in fact the father of the child. For example, in once case the attorney general requested that the court rule that a tissue testing be ordered in order to determine that the deceased is the father of the child. In that case, the court determined that though the tissue testing would be the most solid evidence for parenthood, the court will use other methods to determine parenthood if it is not performed. In one case, the court ruled that the deceased should be recognized as the father of the child based on many witnesses that knew the child as the child of the deceased, on her familiarity with the deceased and the mother’s familiarity with the deceased, and photos and other evidence that the mother brought with her to court to help the court with the ruling.
You should consult and attorney that specializes in post mortem paternity suites if you are interested in filing a post mortem paternity suit!
A post mortem paternity suit is a complex suit due to the fact that the alleged father is no longer alive. Each case is examined by the court on its particular merits, evidence and testimonies. Our office has extensive experience in family law and post mortem paternity suit in particular and can aid you in filing a post mortem paternity suit procedure in a professional discreet and sensitive manner.