Can Someone Secretly Collect DNA Samples for Testing? Is It Legal?

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“My husband (boyfriend at the time) is on my 6 year old daughter’s birth certificate. He has raised her and we are still married. Now, 6 years later another guy is making accusations that my daughter is his and that he went behind our backs and did a DNA test proving it? Is there any laws that can help me out? I would think that taking someones cells without permission would be illegal. Also do I have any legal rights on the whole matter?”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

There may be a violation of privacy for stealing your or your daughter’s cells. Perhaps a battery has occurred. If he took hair samples out of the trash or otherwise collected DNA samples that had been discarded, then you may not have much of an argument there.

In California, under Family Code Section 7611, your husband has satisfied the requirements for being the presumptive father of your daughter. The presumption can only be rebutted by clear and convincing evidence, and even to get there certain requirements must be met. Likely, to get on the birth certificate, your husband had to file a voluntary declaration of paternity (FC Section 7573-7574). The time for your husband to file paperwork to prove he is not the father has actually long passed.

Now the bad news (followed by some hopeful news). In many states an action by a biological father to establish paternity can be maintained up until the child reaches majority or even twenty one! However, many states have statutes that would prevent the overturning of voluntary declaration of paternity if it would be in the child’s best interests to do so (See e.g. California Family Code Section 7575(b)). The 6 years of fatherhood and the bond that he has with his daughter and his willingness to keep on in this responsibility would all be considered.

Take nothing for granted. The secret tests will likely be inadmissible in Court. If biological father wants to get in your daughter’s life, he should have to make a voluntary declaration of paternity in Court, start his own paternity action, and start the flow of child support to your daughter. If he is serious enough to go through with this, then maybe he will somehow prove to be deserving to be part of your daughter’s life. Unless, of course, you believe it would be in your daughter’s best interests to have a relationship with him, in which case, put on your cooperative hat and set up some visits.

There really is nothing for you to file right now, unless his actions rise to the level of domestic violence or civil harrassment restraining order.



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Author: House Attorney

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