1975, November, Pg. 2097. Determining Paternity in Domestic Cases.

• Author: by Susan W. Whicher

4 Colo.Law. 2097

Colorado Lawyer

1975.

1975, November, Pg. 2097.

Determining Paternity in Domestic Cases

2097Vol. 4, No. 11, Pg. 2097Determining Paternity in Domestic Casesby Susan W. WhicherJurisdiction to determine paternity of a child depends upon whether there is a presumption of paternity by the putative father. The strongest of such presumptions arises out of the marriage of the natural mother and putative father at the time of conception or birth of the child. This presumption holds even if the marriage is later held to have been void.

A presumption of paternity is also created by an acknowledgment or admission of paternity by the father or by support of a child by the father.(fn1) If the child is over five years of age, absence of the above acknowledgment bars a paternity action.(fn2)

A presumption would, of course, also arise out of any previous litigation concerning the same parties so long as the issue of paternity had been specifically plead and determined.

Where there is no marriage under the above circumstances, nor determinative litigation, there is no presumption. No presumption arises in the state of Colorado out of a marriage which takes place subsequent to the birth of the child---only children born or conceived during a marriage are presumed legitimate issue of the parties to that marriage. If a child is born out of wedlock, his illegitimacy is not affected by a subsequent marriage of his natural mother and alleged father unless he is adopted by said father. No presumption in favor of paternity arises out of such a marriage. However, a presumption of paternity may be created by admissions or support as discussed above.

EXCLUSIVE ORIGINAL JURISDICTION

Absent any of the above presumptions, the issue of paternity must be litigated in the juvenile court, or in a district court sitting as a juvenile court: "Except as otherwise provided by law, the Juvenile Court shall have exclusive, original jurisdiction in proceedings: To determine the paternity of a child and to make an order of support in connection therewith; . . ."(fn3) Further,Proceedings to establish the paternity of a child and to compel support under this Article, may be commenced by the mother---whether a minor or not; by the child's guardian of person; or, if the mother or the child is a public charge, by the County Department of Social Services.(fn4) A jury trial may be demanded by the child or either party.(fn5) The purpose of such a paternity action is to determine a duty of support by the putative father. Were there a marriage or acknowledgment of paternity, there would already exist a duty of support and hence no need for the original action by the mother, child, or guardian in need of financial assistance.

No recovery of costs and attorneys' fees

2098is possible in an action to...