Written by: Elana Kuys
Date: 27 November 2022

It is a question often asked by fathers or alleged fathers: whether they are, in fact, the biological father of a particular child or not, and how do they go about testing this? This can be done by taking a paternity test, and depending on the outcome, legal implications may or may not arise for such a father or alleged father.

What is a Paternity Test and how is it Performed?

A paternity test is a form of DNA testing where samples of the biological mother, the child, and the alleged father are collected to determine if the DNA of the alleged father shows its presence in the DNA of the concerned child.

Who must supply DNA samples for testing?

It is often mistaken that the only parties required for paternity are the alleged father and the child. This is not the case. The mother’s sample is also required for the following reasons: –

  • A child gets their DNA from both their biological mother and father, and by testing the mother, one can determine which DNA she contributed towards the child’s DNA which can then be ruled out;
  • The remainder of the DNA is compared to that of the alleged father to determine the paternity;
  • It is important to note that without the mother’s sample, a paternity test can falsely include an alleged father; or
  • The results can be unclear.

Who Should Consent to a Paternity Test?

More often than not, a paternity test is conducted on minor children where either a mother or alleged father claims paternity in respect of that child. In instances where a paternity test is to be conducted on a minor child, the following parties must provide their consent: –

  • All tested parties (i.e., the mother of the child as well as the alleged biological father);
  • The mother of the minor child, if she is available;
  • In the instance where the biological mother is not available, any person who has been appointed as a legal guardian over the minor child must provide their consent;
  • A major child may also request that a paternity test be conducted, should they wish to do so. The major child will not need to obtain consent to undergo such testing; however, such a major child will have to obtain the consent of their mother and the alleged father to obtain their samples for such testing purposes.

What are Godparents’ and Foster Care Host Parents’ Rights and Duties in respect of Paternity Testing?

A godparent’s rights and duties in respect of paternity testing are simple, should the godparent or godparents be the legal guardian or guardians of the minor child, their consent is vital, and should they consent to such proceedings, it is their duty to ensure that they make the minor child available for the paternity testing.

A foster care host parent’s rights and duties are thus limited in this instance. The position is as follows: –

  • If the minor child is in the care of a foster parent, they are not in a position to object to a paternity test. The reason is that a foster parent is not the minor child’s legal guardian and cannot object to the paternity test.
  • Should a minor child’s biological mother or legal guardian consent that the minor child may be subjected to paternity testing, the foster parent or parents shall be informed thereof, whereafter it will be the duty of the foster parent or parents to make the minor child available for the testing;
  • Only when a foster parent legally adopts a minor child will they be regarded as the legal guardians of such a minor child. In this case, they will be in a position to object to paternity testing.

The Legal Implications of Paternity Testing, what does it Entail?

Depending on the purpose of the paternity testing, certain legal implications may or may not arise for the alleged father should the testing outcomes be positive and indicate that the alleged father is, in fact, the biological father of the child in question.

Many a time, such testing is done when the mother of the child requests that the father be liable, for example, for the maintenance of the child. It is essential to understand that, should results be evident that an alleged father is the biological father of a particular child, the mother or a legal guardian may pursue a maintenance claim against the biological father regarding the said child.

On the other hand, if an alleged father is not entirely happy with how his child is being raised or is being kept from having contact with such a child, a conclusive paternity test may be beneficial to the alleged father. If the paternity test confirms paternity, the father will have all parental rights and responsibilities as envisaged in Section 18 of the Children’s Act 38 of 2005. He would then be able to take care of his biological child and enforce his parental rights and responsibilities.

Where can I get a Paternity Test, and is it Difficult to Come By?

A paternity test is something that is easy to get a hold of. Most local pharmacies and pathology laboratories can assist with the necessary testing and processes.

There are also many online services whereby the testing kits are delivered to a person’s preferred address.  By opting for online testing, paternity testing can be conducted in the comfort and privacy of your own home.

Paternity testing will determine whether an alleged father is, in fact, a child’s biological father. Depending on the purpose for which this testing is being conducted, certain legal implications may or may not arise for the alleged father. It is not difficult to engage in the paternity testing process; it is just imperative that the necessary and proper consent is obtained before such engagement.

Should you wish to receive more information regarding paternity testing and the legal implications thereof, please do not hesitate to contact one of our branches to schedule a consult with one of our specialist family law attorneys.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE