Articles Posted in Paternity

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The process of how to establish paternity of a child can be messy and complicated but it can also be vital, for both fathers and mothers. Unmarried fathers seeking custody or visitation often need to establish paternity in order to entrench their legal rights. In addition, mothers trying to obtain child support payments from deadbeat dads often need to establish legal paternity once they locate the father.

Father sonProcess for Establishing Paternity

A father or mother should proceed according to the following steps in order to establish paternity of a child.

1.    First of all, most state laws presume that a married man is the father of a child born by his wife. This is generally the case even if the baby is conceived before the marriage, and in some cases even if the baby is born after the end of the marriage. If no one challenges the baby’s paternity, the presumption is that the husband is the baby’s father. However, if another man challenges the child’s paternity, the presumption can be overcome by sufficient evidence.

2.    Paternity can also be established when a man signs a voluntary declaration of paternity, or signs as the father on the baby’s birth certificate. In the case of unmarried couples, the voluntary declaration can clear up any questions about paternity. For married couples in which the child was born to a father who is not the husband, the new husband can still make the child legitimate by signing a voluntary declaration of paternity. This effectively gives the baby the same rights and recognition as a baby born while the couple is married.

3.    If the biological father refuses to acknowledge paternity, a paternity suit can be filed to force the father to take a paternity test. In most states (including California), the public child support agency can file the paternity suit on the mother’s behalf at no cost. After the father has been served with the suit, a family court will usually order the father and child to undergo DNA testing to determine paternity. These tests are up to 99.9 percent accurate.

As with all areas of family law, the process of establishing or negating paternity can be emotional, contentious, and costly. Oftentimes, a mother needs to prove paternity in order to provide the basic essentials to her child and the rest of her family. On the flip side, few things could be more upsetting to a father than being told that his child is not actually his. In both cases, the parents should rely as much as possible on the system that is in place, and should obtain quality legal representation to help them through the process.

What to do if You Are Involved in a Paternity Dispute

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In 2011, the California legislature passed a law that limited the parental rights of fathers as sperm donors in order to provide gay parents with greater legal protection in custody disputes.

California Governor Jerry Brown signed the Protection of Parent Child Relationships Act into law in August 2011. The bill passed the Senate by a 23-14 vote in July of that year. The bill was an effort by California legislators to provide gay parents with greater parental rights by making it more difficult for sperm donors to claim legal parentage.
Before the law went into effect, when a married couple or a couple in a registered domestic partnership had a child, they were deemed to be the child’s presumed legal parents. In addition, a man who believed he was the biological father of a child could sign a voluntary declaration of paternity, with the consent of the biological mother.

A 2009 California Court of Appeals decision held that in a dispute between a presumed father and an individual who had signed a voluntary declaration of paternity, regarding legal parentage, the latter would prevail. This was true even when the presumed father had raised the child since birth and the father who signed the voluntary declaration of paternity had neither an existing relationship with the child nor intended to have a relationship with the child in the future. baby feet.jpg

The Protection of Parent Child Relationships Act changed the existing law by requiring courts to consider and weigh claims presented by both a presumed parent and an individual who signed a voluntary declaration of paternity when the two parties had competing claims of parentage. In doing so, the legislature adhered to the California Supreme Court’s stance that biology does not override established parental relationships.

A recent case interpreted the law to deny a father parental rights after he had a child with his girlfriend using medical procedures.

In a recent custody dispute between “Lost Boys” actor, Jason Patric and his former girlfriend, the court cited the Protection of Parent Child Relationships Act to deem the mother as the sole parent. The mother used a medical procedure to conceive the child at issue, using Patric’s sperm. As such, the court treated him as a sperm donor and deemed that he could not be considered the child’s father.

Some have criticized the Protection of Parent Child Relationships Act, arguing that it creates a loophole which limits the parental rights of fathers when unmarried couples use medical procedures such as artificial insemination to conceive a child. They state that the Protection of Parent Child Relationships Act has been misinterpreted and does not reflect the modern family construct where an increasing number of unwed couples are choosing to have children, some with the help of fertility treatments.

Senate Bill 115 attempts to close the loophole provide by the Protection of Parent Child Relationships Act, but faces opposition.

In March, Senate Bill 115, which seeks to address this loophole, was introduced to the California Senate. It passed the Senate without a single opposition. However, it has faced controversy at the California Assembly. Some argue that Patric and his former girlfriend, who each hired lobbyists to push their position at the legislative level, should not be allowed to try and circumvent a court ruling in this manner. Others are concerned about how this law would be reconciled with another bill being considered by the legislature, which would allow children to have more than two legal parents. The Assembly’s Judiciary Committee has delayed its hearing on Senate Bill 115 until August.

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In parentage cases, also called paternity cases, the court issues orders that say who the child’s legal parents are. If you are targeted by a paternity suit, you may be wondering what your options are. If you are served with a Petition to Establish Parental Relationship by the other parent, you have 30 days to respond. It is very important to respond, because after 30 days, the court may grant the petition and legally find that you are the child’s father without a paternity test.

If paternity is established, you will expected to provide monetary child support until the child is emancipated. In California, emancipation occurs when the child is 18 and graduates high school, but could continue until the child is 19, if they are unmarried and attending high school full-time.

If parents are married when a child is born, there is usually no question of parentage. The law assumes that the husband is the father and the wife is the mother, so paternity is assumed. However, if there is a question as to paternity, the assumption can be overturned.

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A determination of paternity is a vital aspect to ensure a variety of legal rights. As our Northern California family law lawyers know, a determination of paternity must be made before many parental rights decisions can be made, such as child custody orders, child visitation schedules, and child support orders. Paternity can be determined in several ways, dependent on the circumstances of the individual case.

Methods of Determining Paternity Without Genetic (DNA) Testing:

If the parents of a child are married, there is a presumption that the husband is the father of the child. However, there are circumstances where this presumption may not be applicable to the case, such as when the husband is not physically capable of reproducing.

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child (Cia de Photo).jpgIn the event that unmarried parents separate, both parties are faced with problematic legal issues. These issues hinge upon whether the paternity has been established. Paternity refers to the legal system recognizing a person as a child’s biological parent. As our experienced Santa Rosa family law attorneys know, the male figure in the relationship is not presumed to be the father if the couple is unwed and a child is born from the union.

Under California law, once paternity is established, parents assume the full rights and responsibilities involving their children. As discussed in a previous post, unmarried parents can establish paternity through the execution of a Voluntary Declaration of Paternity, or filing a Paternity Case with the court. If paternity is not established, each parent faces serious legal issues. The mother has no rights to recover child support from the father, and the father cannot seek custody or visitation rights with his child.

Not having the right to child support is a problem especially for unwed mothers, particularly those with low-paying jobs. In many cases a father may have begun paying child support. However, for a variety of reasons–perhaps because the relationship went the south–the father may stop paying. In those situations, paternity still must be shown to get a court order forcing payment of the support.

Although they cannot seek child support from the father without proving paternity, unwed mothers have other options for financial assistance. One such option is seeking financial assistance from the county. When the county disburses financial aid to the unwed mother, this does not relieve the father from providing financial support. The county is required to seek welfare reimbursement from the father by filing a lawsuit. To obtain reimbursement, the county must first acquire a court finding of paternity, establishing that the father is the biological parent.

Unmarried fathers may also face issues regarding their children upon separation from the mother. One of the major issues that unmarried fathers face is in regards to child custody and visitation rights. Oftentimes, unmarried couples agree upon a child visitation schedule without involving the court. In the event that the mother establishes that the schedule is no longer working, the father has no enforceable rights to visit the child unless he has a court order. Obtaining a court order will protect the father’s custody and/or visitation rights with the child.

As illustrated, establishing paternity is extremely important to enforcing certain rights for both the mother and father. Without the declaration that the father is in fact the biological parent of the child, both parents are in a position to lose certain rights that are presumed when paternity has been established. Due to the serious financial and emotional harm, it is vital for unmarried parents contemplating separation to seek legal advice from our Santa Rosa family law attorneys.

See Related Blog Posts:
California Paternity Law Attorney
What Rights Do You Have if You are Not Married and Your Relationship Ends?

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Not yet used - girl_silhouette.jpgPrior to a California court making a determination of child custody, child visitation and child support there first needs to be a determination of paternity and depending whether the parents are married or not, the law provides for different presumptions and procedures.

For example, when a married couple is living together and a child is born, as long as the husband is not impotent or sterile, it is presumed that the husband is the father. In several limited situations, this presumption may be challenged. .

If the parents of a child were never married there are different issues the parent must contemplate regarding the issue of paternity.

Parents who were not married may legally establish paternity through the execution of a Voluntary Declaration of Paternity, which is a document commonly available at any hospital. In essence, the voluntary declaration includes a statement by both the mother and father stating they each believe the declared father to be the child’s biological father and that they consent to paternity being legally established. When unmarried parents have a child born in a different state and the parents signed a voluntary declaration in that separate state, a California court will recognize a declaration signed in that different state.

The signing of the voluntary declaration does not prohibit the declared father from later having a court enter a formal judgment regarding paternity or having the voluntary declaration set aside if DNA tests show that he is not the biological father.

For the any unmarried parents that have never signed a voluntary declaration who wish to establish paternity, they must petition the court to determine paternity. This requires a parent to file a Petition to Establish Parental Relationship. However, the filing of a Petition to Establish Parental Relationship does not allow the court to make orders regarding child custody, child visitation and child support. The Petition to Establish Parental Relationship only allows the court to determine paternity and if a parent wants the court make orders regarding child custody, child visitation and child support, the parent must file a separate motion for those particular issues.

Once a Petition to Establish Parental Relationship has been filed by either parent, the parties can either reach an agreement if neither the father or mother contests the issue regarding who is the biological father. However, if neither party agrees a DNA test may be ordered by the court to either establish paternity or disestablish paternity.

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