Paternity is interchangeably used with parentage in California or parental relationship. Paternity refers to the legal or biological relationship between a child and a parent. Fathers are the ones that need to prove the paternity of their children. There are cases where a man wants the rights of a child. He believes the child to be biologically his even when the mother is disputing. Or the mother wants a man to take responsibility for their child, but the man claims not to be the father. Other times a woman could have a child while married, but the biological father is different from her husband. In such cases, among many others, a parent may need guidance on establishing the paternity of a minor. Should you need to understand how to ascertain the paternity of a child and the legal obligations, a family lawyer will help you. Talk to us at the San Diego Divorce Attorney, and we will help and guide you through the legal process of paternity.
Understanding Paternity in California
The relationship between a parent and a child is what is referred to as paternity or parentage. When paternity is established, it means the courts or the parents have identified the father to the child. Various scenarios exist where the law will presume who the father of a child is. These scenarios include:
- When a mother gives birth to a child while married, automatically the father of the child is assumed to be the husband
- When a woman and a man live together as a family, and the man is committed or takes responsibility for the child even when he did not biologically sire the child
- A man tried to marry a lady and even when the marriage was invalid, they conceived and got a child under the circumstances
- The man married the mother after she had a child, but he agreed to have his name on the child’s birth certificate
- A man welcomed and accepted a minor into his home. He additionally acted as the father, a concept known as parentage by estoppel. This means the court can still recognize the man as the legal father even when he is not biologically related to the child, but he treated the child like his own.
In the absence of one of these situations, it may be necessary to establish paternity. The presumptions of paternity as they apply to married couples are the same in same-sex couples or those in registered domestic partnerships.
What Does Establishing Paternity or Parentage Mean?
Declaring or establishing paternity requires getting a court order. Other times, it requires the signing of an official declaration of paternity. This declaration indicates the legally recognized parents of a child. For instance, a lady can get a child out of wedlock. However, this does not mean that the child has a legally recognized father until their paternity is established. Even when a man can prove biologically to be the father, the law does not know him to have any responsibilities or rights over the child because he was not legally married to the child’s mother. To be recognized legally, paternity or parentage needs to be established according to the law.
It is essential to establish paternity before child support, visitation, or custody is ordered in a court of law. One can request the court for custody, visitation, or child support orders as a case to determine paternity is ongoing. In cases where the father refuses to accept he is the biological father of the minor, the court can ask for genetic testing of the mother, child, and alleged father.
Establishing paternity is essential for same-sex couples. For instance, a woman may have had a child before meeting the woman they are in a relationship with. The two of them can agree to share the parentage of a child belonging to one. However, the woman that is not the biological mother of the child may want to be recognized as a legal parent to the child. In such a case, the woman will request the court to issue an order giving her parental constitutional rights over the child. To do this, the court will order the woman to prove that the biological parent intended for the woman to be a parent to the child as well.
This is also the same case for two men where one had a child before, and the other wants to be legally recognized as the other parent of the child. Parentage or paternity law can be complex; however, with an experienced family lawyer, it becomes easier to understand each case on its merit.
A person that is established to be a mother or a father to a minor, she or he will assume the same responsibilities and rights to the child as the other parent. These rights include:
- Having the right to request the court for visitation, custody, or parental time in case the couple separated or divorced. The court will consider their request because the law recognizes them as the parent to the child.
- The parent will have the responsibility to pay child support, equally share health care expenses in case the child does not have a medical cover or the child is uninsured in some cases. Additionally, the parent will be expected to share other costs should the custodial parent find work or go back to school.
Sometimes, the court can issue paternity rights to more than two parents. Normally, this is after the court evaluates the circumstances and realizes the child would be hurt if other parents are not recognized legally.
Why is it Important to Establish the Paternity of a Minor?
Psychologically, it is essential for the emotional stability of the child to who their parents are. Legally, a child whose parents are legally established is entitled to equal privileges and rights as a child with legally married parents. Privileges and rights include:
- Both parents are expected to offer financial support to their child
- The child has legal documents that identify who their parents are
- Both parents names are registered in the birth certificate of the child
- The child has a right to family history and medical records
- The child will benefit from life and health insurance cover as taken by both parents
- The child has a right to an inheritance from the parents
- The child has a right to get veterans and social security benefits belonging to their parents where applicable.
After establishing parentage or paternity, the court is able to issue orders for the support of the minor, visitation, custody rights, health insurance, change of name and compensation of pregnancy, as well as expenses associated with giving birth. When paternity is not established, the court is unable to issue orders on any of these issues. This is important, especially where a parent will be expecting the other parent to give child support, but they refuse to do so voluntarily. Without the establishment of parentage, one parent can neglect their duties, and the court can do nothing about it until paternity is established.
Establishing paternity is not always about the financial benefits to a child. Even when one parent refuses to be part of the minor’s life or support the child, the benefits of determining paternity goes beyond finances. In cases where the paternity involves more than one parent, the responsibilities and privileges to the child are shared amongst them as well.
How to Establish Paternity
The law recognizes two ways paternity can be established where the alleged parents of the minor are not married to each other. These are:
- Obtaining a court order privately or through the local child support agency or
- Signing a voluntary Declaration of Paternity
The state of California provides a form where both parents sign voluntarily establishing them to be the minor’s legal parents. This form is known as the Declaration of Paternity form. As the word suggests, no one is forced to put their signature on the form. This form is essential in establishing the legal parents of a child when not married to one another.
When a declaration of paternity is signed accordingly, it acts, in the same manner, a court order meant to establish parental relationship does without the need to go to court. After signing the form, it is a requirement to file it with the department of child support services in California – Paternity Opportunity Program (POP) for it to be effected.
A voluntary declaration is always the easiest way to determine paternity. In most cases, when a woman that is not married gives birth, the medical providers typically give her information pertaining to the form. If the supposed father of the child is present, he is also given details on the same. After that, the father and mother, if they agree, they sign the form acknowledging to be the parents. This recognizes the man as the legal father. After that, his name will automatically be appended in the birth certificate, and he is assumed to have responsibilities and rights to the minor, just like the mother.
When one of the parents is below the age of eighteen at the time they sign the voluntary declaration of paternity, the declaration only becomes effective two months. This is once the underage parents or parent becomes 18 years.
Obtaining a court order to determine paternity is the other way parentage or paternity is established. The law in California does not allow any person to acquire a court order for paternity establishment. However, certain persons and agencies are permitted to request the court to issue a paternity order. These persons and entities are:
- The child’s or minor’s mother
- The person that believes he is the child’s father or has, on various occasions, been told he is the father. This is the person the law refers to as an alleged father or putative father.
- A child support agency providing certain services to the child’s mother
- Any agency dealing with adoption.
When the minor is below the age of 12, she or he may be or may not be considered as a party in the case. However, if the minor is 12 years and above, they will automatically be considered as a party in the case. In both cases, the judge will appoint a child representative known as a “guardian ad litem.” This representative is the one that presents the best interests of the child to the court.
Starting a Paternity Case
A mother may decide to use an agency on child support services as provided for by the law. The agency is authorized to request the child, mother, and supposed father to take genetic tests. According to the agency, the tests are necessary for establishing the minor’s biological father. When a mother wants to receive child support, welfare, or any other benefits, genetic testing is mandatory.
In the event that the issue is brought before the court, the superior court has the authority to request the mother, child, and alleged father to undergo genetic testing. Should the probable father refuses to cooperate, the court may consider his behavior to mean he is the father of the child. In such a case, the court will establish the man to be the legal father and can order the father to:
- Pay the mother, child support
- Provide health or medical insurance coverage for the minor
- Legal and physical custody of the minor. This means where or whom the child shall live with as well as whether both or one parent will make decisions regarding the child
- Visitation rights. This means that even when the father has no legal custody, he has a right to visit their child
- Pay the costs to the court. These are the costs the court charges to begin the case
- Paying the fees for the lawyers of either party.
When Paternity is Disputed
Sometimes a man can be told he is the biological or legal father of a minor but is in dispute of the fact. This man is within his legal right to request a genetic test to be carried out to establish if he truly is the father to the child.
The genetic test most carried out is the DNA test. This is a material that biologically determines the characteristics of a person physically. This material is present in most human body cells, with each DNA trait being unique.
However, a child naturally inherits DNA coding from both its parents. Due to this, paternity can be established when the DNA of a child, father, and mother is analyzed. This is a scientifically proven method of establishing a parental relationship with a minor.
Saliva also contains DNA, just like the rest of your body. Rubbing a sterilized cotton swab on the inside of a person’s mouth is a way of harvesting one’s DNA.
- When the child support services department carries out the DNA test, no cost is apportioned to any parent
- The court can order parents named in the suit to take a DNA test. In such a case, the parents will be charged for the test
- Privately tested DNA results are unacceptable in court in cases of paternity unless the court so requested it
- When the court requests the parents to take a DNA test, it provides them with the information they require to have the tests performed
- DNA tests carried out in one’s home, or private medical facility is also not permissible in court.
Sometimes, a woman may have been pregnant by another man but gets married to another before giving birth. In such a case, it is essential to know that being a biological father does not trump over marriage with regard to paternity cases in California. The courts indicate that when a child is born of a married couple, the question of paternity does not arise because the married couple is recognized as the legal parents.
Even when a woman may have had an affair and got a child with another man while still married to her husband, the law automatically recognizes the husband as the legal father. However, the biological father is not barred from requesting a paternity test if he wants to be involved in the child’s life. The law gives the supposed biological father a limited window under which he can request for a paternity test. This window is typically two years from the date the child was born.
Should the alleged father miss this window, the husband to the woman automatically becomes the legal father to the child. The biological father, on the other hand, loses rights to the child as a parent. Equally, a husband that doubts the paternity of a child has two years from when they discovered to investigate. He may ask the court to order a blood test or DNA testing to establish paternity.
What Happens when the Marriage Ends?
A husband can be a legal father to a child but not a biological father. He may have known it or not but, as long as he raised the child as his own and did not dispute it within the legally allowed window, he remains the father. Divorce, in this case, does not deny the father parental rights to the child unless it happened in less than two years allowed, and the biological father had requested the court to allow the paternity test.
If the divorce happened past two years and the biological father had not raised a petition, the legal father has a right to request physical custody, whether solely or jointly with his ex-wife. Additionally, the husband will still be ordered to provide child support for the minors.
If later the biological father petitions for paternity, he may be recognized as the biological father but not the legal father. This means that he has no financial obligations to the child legally unless he wishes to voluntarily.
Find a San Diego Divorce Lawyer Near Me
Paternity laws in California are complicated and can affect the upbringing of a child if not established. A parent can suffer without the other parent’s support towards the child. Another parent may be suffering psychologically because they have been denied rights to a child they believe to be theirs. An experienced family lawyer can help you get your child the support they deserve or get you the rights to your child. At San Diego Divorce Attorney, we are able to help you get the best interests of your child met by helping you establish the paternity of your child. Call us today at 858-529-5150, and let us help you.