Originally published in the Spring 2022 AZ Family Law Newsletter.
By Gregg Woodnick and Isabel Ranney
Paternity drama has plagued humankind for years. There is lore amongst evolutionary biologists that babies look more like their fathers because maternity is clear, but paternity is in doubt. Perhaps this has no roots in truth, but it is a myth that has become sucked into the vortex of paternity determinations, as the advent of paternity tests have become a source of contention in family and juvenile court proceedings.
Any attorney who has spent time working on Department of Child Safety (DCS) matters will have their own stories of children in the care of the state where the state needs to determine paternity. If the mother tells the state that Michael is father, the state will allege that they are the putative father and compel a paternity test. If the DNA is a match, the matter is resolved. There are numerous war stories where the state provides not just one or two paternity tests, but several to all putative fathers. Each test costs State a significant sum of money, but not as much as what private labs charge in paternity establishment matters .
It used to be that paternity determination during the pregnancy were rare, expensive, and came with not insignificant risks. Luckily, science has given us a new, cost-effective tool recognized as reliable under Rule 703 and that practitioners should add to their repertoire. Gone are the days of waiting until a child is born or risking the dangers of an amniocentesis/chorionic villus sampling test to find out the identity of the child’s father.
The following is a brief overview of what was available until just recently and then an explanation of what attorneys should be recommending for their clients early in paternity disputes.
Old School DNA
For those needing to know the identity of the father before the child was born, an amniocentesis procedure was a viable, though risky, option. This method is performed using amniotic fluid that is removed from the mother’s uterus by inserting a needle through the stomach and into the womb. Amniotic fluid is what surrounds the fetus and protects it throughout the pregnancy (the amniotic sac that contains the fluid is the “water” that leaks out when someone’s “water breaks”) . The cells that are cultivated from the amniotic fluid can be used to glean information about the fetus’s genetic makeup, fetal lung maturity, identify fetal infection, and to collect fetal DNA for the purposes of paternity testing. This procedure can be done between weeks 15 and 20 of a pregnancy .
While Amniocentesis can provide a significant amount of information about the fetus and help settle paternity issues prior to birth, it also comes with a range of potential risks, both to the mother and the fetus. For example, the needle used for the procedure may injure the fetus and there is a slight increased risk of miscarriage . The earlier in the pregnancy that amniocentesis is performed, the higher risk of complications. The average cost of amniocentesis ranges between $1,000 to $7,200 depending on insurance .
- Chorionic Villus Sampling (CVS)
Another way to collect fetal DNA, though with the same risks as amniocentesis, this method is performed by taking placenta from either the mother’s cervix or the abdominal wall using a needle or by inserting a catheter . The placenta is an organ that provides blood and nutrients to the fetus throughout the pregnancy and can be used for chromosomal testing, as well as to collect fetal DNA . This procedure can be done between the 10th and 12th weeks of pregnancy .
As with any invasive medical procedure, CVS testing has its risks and complications may occur. These include infection, miscarriage, bleeding, preterm labor and, in rare cases, there may be limb defects . The average cost of CVS is between $1,300 and $4,800, including physician fees .
- Maternal Blood Testing
This is the only non-invasive method for determining paternity prior to the child being born. The blood of the mother contains cell-free fetal DNA beginning five (5) weeks into the pregnancy . This means that any uncertainty with regards to parentage can be resolved shortly after the mother discovers she is pregnant. This method is undertaken by a simple blood draw.
As a non-invasive procedure, there are no associated risks. The DNA paternity test will return a “greater than 99.9% probability of paternity,” which exceeds the minimum required by A.R.S. § 25-814(A) . The costs of this form of testing varies depending on how far along the person is in the pregnancy. This testing can cost as little at $900 or as much as $2,200 .
Be Your Own Maury Povich
Non-invasive prenatal paternity testing is a no brainer. All that is required is for the mother to get their blood drawn from their vein using a small needle and for the putative father to provide a DNA sample (blood or buccal swap).
Not only is this a simple procedure with no risks involved, but the mother can ascertain the identity of the father just weeks into her pregnancy. This means that as early as five (5) weeks into a pregnancy, the momentary discomfort of a blood draw can prevent costly and contentious litigation from ever occurring. This can come as a huge relief to the mother and to the putative father it may settle custody disputes outside of court.
While cost is certainly a factor to consider when determining which prenatal method of paternity testing is preferred, knowing who the father of the child is before it is born is invaluable information. More importantly, ascertaining this knowledge is inexpensive compared to the potential thousands of dollars spend litigating paternity disputes.
Gregg Woodnick has been practicing law in Arizona for over 20 years. He is a former adjunct law professor and has lectured for Yale University, Midwestern College of Osteopathic Medicine, Arizona State University and Northern Arizona University.
Isabel Ranney is a third-year law student at the Sandra Day O’Connor College of Law at Arizona State University, Associate Editor for the Law Journal for Social Justice, and clerk at Woodnick Law.