Paternity

Due to the emotional and financial implications, paternity issues can be extremely complex and inflammatory. Richard Ross Associates represents both mothers and fathers seeking to establish paternity and those seeking to refute paternity.

With regard to married couples, there is a statutory presumption that the husband is, in fact, the biological father of the child, and legal paternity is "automatically" bestowed upon the husband. If the "father" accepts and holds out the child as his own for two years or more, the presumption becomes irrebuttable. Sometimes, however, there may a question as to whether or not the husband really is the biological father, such as in cases of non-access (through incarceration or otherwise) or impotence. In these instances paternity may be disputed by either parent, with blood and DNA testing often determining paternity.

Having a child outside of marriage carries with it no such presumptions as to the legal fatherhood of the child. Paternity may be established by execution of a Declaration of Paternity form at the hospital when the child is born. Doing so provides some of the same rights and privileges that a married father would have. The declaration, however, is not wholly dispositive.

Problems can, and often do, arise between parents. They may disagree on schooling, medical questions, or financial support for the child. Questions about custody or time-sharing can also arise if the couple does not live together or terminates their involvement with each other. In the worst of cases, the mother may not inform the father of the birth of the child or of the pregnancy. In other cases, the mother may be unsure as to who is the father.

It is most important to establish your desired parental role as early as possible, either through agreement with the other parent or through the court's assistance. Generally, the longer a parenting arrangement stays in effect, the more difficult it is to undo. So if you're not satisfied with the amount of time you spend with your child, you need to act promptly.

Frequently Asked Questions

WHAT IS PATERNITY?

Paternity means fatherhood. Establishing paternity is the process of determining the legal father of a child. When parents are married, in most cases, paternity is established without legal action. If parents are unmarried, paternity establishment requires a court order.

Until paternity is established, the father does not have the legal rights and responsibilities of a parent. Establishing paternity is necessary before the court may order custody, visitation, and child support. A permanent child support order cannot be established for a child until either the alleged father admits paternity or it is proven that he is the father. If the man does not admit that he is the father, the court may order the mother, child and alleged father to provide a blood sample for testing. Additionally, if the alleged father fails to answer a legal complaint that he is the father, the court can name him the father by default.

WHAT PATERNITY PRESUMPTIONS MAY BE MADE BY A COURT?

STATUTE PROVIDES:

"Except as provided in [Family Code §7541], the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” (Family Code §7540.)

The procedure for challenging the presumption during the first 2 years of the child's life is set forth in Family Code §7541:

STATUTE PROVIDES:

“(a) Notwithstanding Section 7540, if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed pursuant to Chapter 2 (commencing with Section 7550), are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.

(b) The notice of motion for blood tests under this section may be filed not later than two years from the child's date of birth by the husband, or for the purposes of establishing paternity by the presumed father or the child through or by the child's guardian ad litem. As used in this subdivision, "presumed father" has the meaning given in Sections 7611 and 7612.

(c) The notice of motion for blood tests under this section may be filed by the mother of the child not later than two years from the child's date of birth if the child's biological father has filed an affidavit with the court acknowledging paternity of the child.

(d) The notice of motion for blood tests pursuant to this section shall be supported by a declaration under oath submitted by the moving party stating the factual basis for placing the issue of paternity before the court.

(e) Subdivision (a) does not apply, and blood tests may not be used to challenge paternity, in any of the following cases:

(1) A case that reached final judgment of paternity on or before September 30, 1980.

(2) A case coming within Section 7613.

(3) A case in which the wife, with the consent of the husband, conceived by means of a surgical procedure. (Am Stats 1998, C581) (Family Code §7541)

CAN I SIGN A VOLUNTARY DECLARATION OF PATERNITY?

Answer - Yes.

STATUTE PROVIDES:

"The Legislature hereby finds and declares as follows:

(a) There is a compelling state interest in establishing paternity for all children. Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to, social security, health insurance, survivors' benefits, military benefits, and inheritance rights. Knowledge of family medical history is often necessary for correct medical diagnosis and treatment. Additionally, knowing one's father is important to a child's development.

(b) A simple system allowing for establishment of voluntary paternity will result in a significant increase in the ease of establishing paternity, a significant increase in paternity establishment, an increase in the number of children who have greater access to child support and other benefits, and a significant decrease in the time and money required to establish paternity due to the removal of the need for a lengthy and expensive court process to determine and establish paternity and is in the public interest." (Family Code §7570)

MAY A COURT ORDER GENETIC TESTING TO DETERMINE PATERNITY?

Answer - Yes.

STATUTE PROVIDES:

"In a civil action or proceeding in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person who is involved, and shall upon motion of any party to the action or proceeding made at a time so as not to delay the proceedings unduly, order the mother, child, and alleged father to submit to genetic tests. If a party refuses to submit to the tests, the court may resolve the question of paternity against that party or enforce its order if the rights of others and the interests of justice so require. A party's refusal to submit to the tests is admissible in evidence in any proceeding to determine paternity. For the purposes of this chapter, 'genetic tests' means any genetic test that is generally acknowledged as reliable by accreditation bodies designated by the United States Secretary of Health and Human Services.” (Family Code §7551)

HOW ARE THESE GENETIC TEST INTERPRETED BY THE COURT?

If the genetic markers are 100 or greater, the man is presumed to be the father of child.

STATUTE PROVIDES:

"(a) There is a rebuttable presumption, affecting the burden of proof, of paternity, if the court finds that the paternity index, as calculated by the experts qualified as examiners of genetic markers, is 100 or greater. This presumption may be rebutted by a preponderance of the evidence.

(b) As used in this section:

(1) "Genetic markers" mean separate genes or complexes of genes identified as a result of genetic tests.

(2) "Paternity index" means the commonly accepted indicator used for denoting the existence of paternity. It expresses the relative strength of the test results for and against paternity. The paternity index, computed using results of various paternity tests following accepted statistical principles, shall be in accordance with the method of expression accepted at the International Conference on Parentage Testing at Airlie House, Virginia, May 1982, sponsored by the American Association of Blood Banks. (Am Stats 1997, C599) (Family Code §7555)

MAY BLOOD / GENETIC TESTING OVERCOME THE PRESUMPTION OF PATERNITY?

Answer - Yes, in limited cases.

STATUTE PROVIDES:

"(a) Notwithstanding [Family Code §7540], if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed pursuant to [Family Code §7550 et seq.], are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.

(e) Subdivision (a) does not apply in any of the following cases:

(1) A case which reached final judgment of paternity on or before September 30, 1980.

(2) A case coming within [Family Code §7613 (artificial insemination)].

(3) A case in which the wife, with the consent of the husband, conceived by means of a surgical procedure.” (Family Code §7541)

MAY ATTORNEY FEES BE AWARDED BY A COURT AFTER A DETERMINATION OF PATERNITY IN A CONTESTED HEARING?

Answer - Yes.

In fact, the case is not over until the issue of fees and child support is determined. The fee awards in paternity actions are discretionary with the court. "[T]he actual amount to be awarded is left to the trial court, which has wide discretion to determine reasonable attorney's fees and costs." (Id. at p. 1384.) City & County of S.F. v. Ragland (1987) 188 Cal.App.3d 1375, 234 Cal.Rptr.327

MAY A PATERNITY JUDGMENT CONTAIN AN ORDER FOR CUSTODY AND GUARDIANSHIP OF A CHILD, OR VISITATION PRIVILEGES WITH THE CHILD?

Answer - Yes.

STATUTE PROVIDES:

"The judgment or order may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child....” (Family Code §7637.)

DOES THE FILING OF A BANKRUPTCY PETITION STOP THE PROCEEDINGS TO ESTABLISH OR MODIFY SUPPORT ORDERS IN PATERNITY ACTIONS?

Answer - No.

The bankruptcy petition does not stay proceedings to establish or modify support orders in family law or paternity actions. 11 U.S.C. §362

IN NON-AFDC CHILD SUPPORT CASES, MAY SUPPORT ORDERS IN PATERNITY ACTIONS BE MADE RETROACTIVELY?

Answer - Yes, but...

...support orders in paternity actions may be made retroactive only to date of filing of the Notice of Motion or Order To Show Cause, not to the date of the filing of the original complaint. Family Code §4009 governs effective date for child support (c/s) orders in family law actions: "An order for child support may be made retroactive to the date of filing the notice of motion or order to show cause, or to any subsequent date, except as provided by federal law (42 U.S.C. §666 (a)(9)."

IN ADDITION TO OBTAINING AN ORDER FOR THE SUPPORT OF THE MINOR CHILD, CAN A MOTHER OBTAIN AN ORDER FOR PAYMENT OF HER PREGNANCY EXPENSES?

Answer - Yes.

STATUTE PROVIDES:

IN WELFARE REIMBURSEMENT CASES PROSECUTED BY THE LOCAL DISTRICT ATTORNEY WHAT IS THE STATUTE OF LIMITATIONS FOR COLLECTING ON AFDC PAYMENTS MADE BY A COUNTY PRIOR TO THE FILING OF THE COMPLAINT?

3-year statute of limitations applies to welfare reimbursement proceeding – Upon behalf of a county that has paid AFDC to support a child, a district attorney can file a complaint for paternity and welfare reimbursement under Family Code §17402. A court can only order a defendant to reimburse the County for the AFDC payments it made prior up to three years before it commenced the legal action. County of San Mateo v. Booth (1982) 135 Cal.App.3d 388, 185 Cal.Rptr. 349.

ARE FINANCIAL RECORDS DISCOVERABLE FROM A MAN ALLEGED TO BE THE BIOLOGICAL FATHER OF A CHILD FOR PURPOSES OF DETERMINING HIS ABILITY TO PAY CHILD SUPPORT?

Financial records are not discoverable until paternity is proved. "••[N]o•• financial records are discoverable for the purposes of awarding interim support until after a prima facie showing of paternity is made. Similarly, while the ••extent•• to which an alleged father's financial records are discoverable is within the court's discretion, the ••time•• for producing these records must await final adjudication of paternity. Thus, an action to establish parentage is essentially comprised of four component parts: a prima facie showing of paternity for purposes of pendente lite support; a determination of an appropriate temporary award; the final adjudication of paternity; and a determination of permanent support (subject, of course, to subsequent modification upon a showing of changed circumstances). Each must be determined at a ••separate•• hearing.

The effect of our holding is to require the trial court to bifurcate the issue of paternity (both prima facie and final adjudications) from that of support." (Id. at p. 265.) Thomas B. v. Super. Ct. (Sherry H.) (1985) 175 Cal.App.3d 255, 220 Cal.Rptr.577