This article provides an overview of how to establish paternity in South Dakota. If you have questions about paternity after reading this articles, you should contact a family law attorney in your area.
“Paternity” means fatherhood. In the legal sense, “establishing paternity” refers to the determination of a child’s “legal” father and the related rights and obligations of the father to the child.
Every child has a biological father, but not every child has a “legal” father. When paternity has been established, it means that someone has been named the legal father of a child.
In South Dakota, paternity is automatically established if the parents are married to each other when the child is born - the husband is presumed to be the legal father and his name will be on the child’s birth certificate. But if the parents of a child are not married to each other when the child is born, then paternity must be established before the father’s name will be placed on the child’s birth certificate and before the father has any legal rights or responsibilities to the child.
In South Dakota, paternity can be established either “voluntarily” or “involuntarily” until the child turns 18 years old.
When the mother and father agree that the father is in fact the biological father, paternity can be established voluntarily. To voluntarily establish paternity, both the father and mother must sign what’s called a “Paternity Affidavit Form.” This is often done at the hospital when the child is born.
The form can also be obtained later from the South Dakota Department of Social Services, Department of Health, or the local Register of Deeds Office. The mother and father must both sign the same form in front of a notary. Once signed and notarized, the Paternity Affidavit must be filed with, or sent to, the South Dakota Department of Health. Once properly filed, the father is the legal father of the child and his name will be added to the child’s birth certificate.
When either the mother or the father disputes paternity, paternity must be established “involuntarily.” In South Dakota, there are two involuntary methods of establishing paternity: by contacting the Department of Social Services (DSS) or by filing a petition (legal paperwork) to establish paternity in court.
If one parent does not want to sign the Paternity Affidavit, the other parent can seek to establish paternity by requesting a DNA test through DSS. Today, a DNA test requires that the child, mother, and father have the inside of their cheeks swabbed. The DNA is then sent to a laboratory for analysis. If necessary, DSS can get a court order requiring the other parent to cooperate. If the test determines that the man is the biological father, he is established as the legal father.
The other way of involuntarily establishing paternity is to file a “Petition to Establish Paternity” at the Circuit Court. Filing the petition begins the court process. A custodial mother can also begin the court process by filing for child support. If a child is receiving public assistance, DSS may also file a petition to establish paternity.
If either the mother or the father denies paternity, the court may order DNA testing. If the court determines that the father is in fact the biological father, the court will issue an judgment of paternity, making the father the legal father, and his name will be added to the child’s birth certificate. Within the proceeding to determine paternity, the court can also issue child support, custody, and visitation orders.
Establishing paternity means more than just having a father named on the child’s birth certificate. There are benefits for the child, the mother, and the father when paternity is established.
Establishing paternity helps children:
Establishing paternity helps mothers to:
Establishing paternity helps fathers to:
More information about voluntarily establishing paternity, including the Paternity Affidavit Form, is available through the Department of Social Services.
For the full text of the statutes governing establishment of paternity, see S.D. Codified Laws § § 25-8-7, 25-8-7.1, 25-8-50, 25-8-58, 34-25-132, and 34-25-133.