What is legal DNA testing?
In a previous article, ‘Why pay more for ‘legal’ paternity tests?’ we explained the difference between home and legal DNA testing, outlining the reasons for the difference in costs of the two. However, this may still have left you wondering ‘what is legal testing used for and how does it work?’
Well, whilst there are several uses for legal DNA tests, the main ones include establishing paternity when dealing with issues such as child maintenance payments or contact arrangements, and in immigration applications. Despite the fact that these legal DNA tests are often crucial components to legal procedures, advice and information are sometimes confusing or difficult to find. This can add extra stress to situations which are often already straining, and so we’ve tried to explain a little more about this type of DNA testing, as well as the extra procedures that it helps to be aware of before taking one.
What makes legal DNA testing different?
The key difference between legal DNA testing and so-called ‘peace of mind’ DNA testing is that legal tests cannot be carried out at home, or by participants themselves. In order to be deemed valid, no matter what reason they are being taken for, legal DNA tests must be carried out by an authorised official, who will send the samples to the lab for analysis. At no stage of the process should the test be handled by those taking it, and it is therefore sent directly to the relevant official from an accredited DNA testing body and this official will then return it to them once the test has been carried out. This is to ensure that the results of these DNA tests are as accurate as possible and, in order to ensure that false results are easily spotted, photographs are usually taken of the participants, adding an extra level of visual verification. A list of companies that are authorised to carry out legal DNA tests can be found on the AABB website’s accredited facilities page..
What is legal DNA testing used for?
As previously mentioned, determination of paternity is one major reason for carrying out a legal DNA test, for example for child custody and inheritance issues. The DNA test is often court-ordered and needs to be a court approved DNA test, in cases such as when one parent has refused to take a test voluntarily. This is for many reasons, including financial support, but also the child’s right to know his/her genetic heritage, particularly so they can be aware of, or can even be genetically screened for, any inherited diseases known to run in the family. The results of such a test can 100% prove that someone is not the biological parent and predict with 99.99% certainty that someone is the biological parent of a child, and therefore provide clarity to what can often be an emotional and uncertain issue.
Another major reason legal DNA tests are carried out is for immigration applications which are most often taken in order to prove genetic relation between two people, in order for one member of the family to join another in a foreign country. If the genetic relationship between the two family members is doubted, then it will strengthen an immigration application to prove that they are related using a legal DNA test. Therefore, it is not court-ordered, but does need to be a court approved DNA test to be used as evidence. It is entirely up to the applicant and their family member as to whether they will take it to support their application.
How are legal DNA tests carried out?
An important consideration when taking a DNA test for immigration purposes is that it should be carried out in the applicant’s county of residence, but at a US Embassy or Consulate, whilst the family member must take the test at an AABB accredited facility in the US. As with all legal tests neither participant, nor any other family member, should handle the DNA test at any stage of the process and therefore it will be sent directly to the facility in which it is being carried out. Making appointments to have the test carried out may, however, be the responsibility of the participants, as well as extra costs, such as for sample collection by a physician. Although this sounds like a lot to arrange, it isn’t as complicated as it sounds, and you may be able to arrange for the DNA testing company to organise this for you, as some of them work with embassies and already have relevant systems in place.
So what if you’re taking a legal DNA test to determine paternity for court? This is less complex. You can usually choose the most convenient person, most often a physician, to carry out the test, and it will be directly sent to and returned by them. All you need to do is turn up, take the test and wait for the results, which will be sent straight to the court, and any other relevant parties, where they can be used as evidence as part of legal cases. Most paternity DNA tests, as well those taken for immigration purposes, use samples taken from the inside of your cheek, via a swab. This is known as a buccal swab and is a painless, non-invasive and quick procedure, which is suitable for adults and children alike. In some circumstances, such as when taking a legal prenatal paternity test, blood or other slightly more invasive techniques may be required in order to collect a sample. However, in most cases these are still quick and relatively painless procedures and will be carried out by trained medical professionals. In terms of results, lots of companies advertise legal DNA tests which are sometimes quicker than ‘peace of mind’ tests, with some offering the option for same-day results.
This does, however, come at a higher cost. The main aspect that both paternity and immigration legal DNA tests have in common is that, except in exceptional circumstances, the full cost burden of taking the relevant legal DNA test falls on the participants, even if it needs to be a court approved DNA test. The cost of taking a legal DNA test is around $200 higher than a home paternity test, as discussed in ‘Why pay more for ‘legal’ paternity tests?’, and must be paid in full by the participant. This price also changes depending on how many participants are taking the test, which is particularly relevant in cases of immigration where more than one relative may be making an immigration application, or if testing the paternity of more than one child.
Watch out for hidden costs!
As well as the cost of the test itself, in order to apply for a court approved DNA test, there may be hidden costs such as for appointments in which samples are taken. Collection and witness charges are often also necessary, although some companies will provide all of this in the price. Different circumstances, such as having the samples taken in prison or ordering a hard copy of the results, also make the process more expensive.
The outcome of a legal DNA test used to check paternity may, however, have an impact on its cost, and specifically, on who pays. In some states, there is an option for the state to pre-pay for the test, which will then be paid back by the biological father if paternity is established. In other cases, both parents will share the cost of the test and then, depending on the result, the full cost may have to be paid by either party. If the person tested is proven not to be the biological father, then there is a small chance that they may get some money back that has been paid in child support.
It’s worth mentioning that it’s often the case that, despite having been proven not to be the biological father of a child, the person tested is still considered the father by law and must continue to meet their child support obligations until the child is 18 years old. This does vary state to state, and a legal DNA test is possibly the most convincing evidence to have to argue this, so it’s worth investigating and getting legal advice if this is a situation you find yourself in.
So, what about the legal impact?
As the name suggests, legal DNA tests can be used as evidence in court. However, this does not mean that the legal impacts are the same in every case. The impact that a legal DNA test has on a case is completely dependent on the reason it was taken. For example, looking at legal paternity tests, two men may be proven not to be the biological father of a child. If one of those men still wanted contact with the child and the other did not, they may both still end up with their desired, opposing outcomes, despite receiving the same test result.
What else are legal DNA tests used for?
Other family law issues, such as inheritance disputes involving siblings, may benefit from the use of legal DNA tests. If it isn’t possible for a person to take a paternity test to prove they’re a person’s biological child (in order to claim an inheritance), their DNA can be tested against a known child’s DNA, independently of their parents, in a sibling DNA test. Unlike paternity tests, the accuracy with which these tests can determine whether or not two people are siblings is lower, and decreases further if no parent is available to test. This is mainly because of the fact that siblings are less genetically related than parents are to children, and is further complicated by cases of ‘half-siblings’ who are even more genetically distinct than ‘full siblings’. Instead of the conclusive ‘biological relationship’ or ‘no biological relationship’ that paternity tests provide, sibling DNA test results are usually given on a scale of likelihood, with anything above 1.0 suggesting some genetic relatedness and anything under 1.0 meaning it is unlikely that the two individuals are genetically related. The extra genetic analysis sibling DNA tests require explains the higher price when compared to paternity tests, both for legal and ‘peace of mind’ tests. Beware of tests that appear cheap, they may not be performed to the accuracy required to gain as conclusive a result as possible.
Legal DNA tests for criminal cases
Another use for legal DNA tests is in criminal cases. Although the US doesn’t have a national DNA database, unlike countries such as the UK, DNA samples are collected from crime scenes by and from convicted criminals by forensics specialists and stored in labs nationwide. Both practical and statistical analysis is used to build genetic profiles which are inputted into a system known as CODIS – this provides an index from which police and other relevant governmental agencies can use it for genetic profiling or fingerprinting. This involves comparison of samples taken at crime scenes to samples taken from an individual to see if they match, and if so, linking that individual to a certain place or object. Private companies, such as those that provide private investigators, also use DNA tests such as these, and in many cases, DNA evidence can mean the difference between a guilty and not guilty verdict.
However, links to a place or object do not necessarily link an individual to a crime, especially as many witnesses are asked to voluntarily provide DNA samples for comparison, to rule them out as suspects. There are understandable ethical concerns surrounding the storage of DNA in criminal cases, especially for DNA taken from suspects that do not end up being found guilty of any crime. It should be noted that in criminal cases, the genetic information stored isn’t genomic, meaning that it doesn’t contain all that individual’s genetic code. This has obvious drawbacks when catching criminals, but does mean that the genetic information stored is limited.
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November 1, 2021
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