Posts Tagged ‘Genetic Testing

03
Nov
10

Can Dad ask for genetic testing to prove paternity prior to divorcing mom?

What is the the procedure for rebutting the presumption of legitimacy of children pending divorce . . .

In Nebraska, children born to the parties in a marriage relationship are presumed legitimate unless otherwise decreed by the court. The presumption is rebuttable by clear, satisfactory, and convincing evidence; however, the presumed legitimacy of children born in wedlock may not be rebutted by the testimony or declaration of a parent. Blood tests are proper to rebut the presumption that husband was the biological father of the children and, in fact, it is an abuse of discretion for the court to not allow the results of a verified blood test into evidence.

The children born during a marriage are presumed to be the husband’s children, so the husband would not need to obtain special permission for testing.  However, if the mother objects to such testing, the discovery and admissibility of such evidence in civil cases is controlled by the Nebraska rules of discovery and evidence. Discovery Rule 35 allows a court to order a blood test of a child in the custody or legal control of a party when the blood group is in controversy. The order for such testing may be made only on motion for good cause shown and upon specifying time, place, manner, conditions, and scope.

“Good cause” for blood testing in a divorce action is not specifically outlined in Nebraska case law; however, the good cause requirement is generally fulfilled by a movant’s affirmative showing that the condition to be verified is actually controverted and that good cause exists for ordering the examining.  A movant’s inability to obtain the desired information without the requested examination is also relevant to a court’s decision whether to order an examination under Rule 35. A pleading verified by the oath of the husband (possibly describing wife’s infidelity or whatever gives him reason to believe the children are not his) should present sufficient “good cause” concerning disputed paternity, and the matter “in controversy,” which might well be resolved, or at least made more a less probable, by the results from a blood test.  Thus the pleadings would demonstrate the required physical condition “in controversy” and “good cause” for the requested blood samples to be used in genetic testing.

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