san diego paternity lawyers

Establishing Paternity

Most fathers think that if they were not married to the mother of their child, they have no legal rights as a parent. That isn’t true.

Paternity for the unmarried father NEEDS TO BE PROVEN through DNA testing or demonstrated through the existence of a Paternity Affidavit before he is legally considered the father.

When paternity has been established the father may seek custody rights in the form of a Parenting Plan or Visitation Schedule just as if the couple was married.

How Is Paternity Established In California?

On a dictionary definition level, paternity is the state of being a father. In California, the term is often used interchangeably with parental relationship and parentage. Either the courts or the parents can establish paternity in a number of ways.

With the advent of DNA paternity testing, a court can now establish parentage in a relatively quick and easy procedure. The father can either submit to a paternity test, or a court order can be obtained to compel the ostensible father to take the test. Today’s DNA test results are accurate and nearly indisputable proof of parentage.

The easiest and most straightforward method to establish paternity is voluntary.

If the parents are not married when a child is born, the mother and father sign a form, a Voluntary Declaration of Paternity This acknowledges that they are in fact the legal parents. The father can then be added to the child’s birth certificate.

Paternity can also be established through the court system. In California, the child’s mother, the man who believes he is the father, an adoption agency, or an organization providing support for the mother, can all request that the court rule on paternity.

Presumed Paternity

  • Paternity can be presumed by the existence of a Paternity Affidavit often presented to the father at the hospital at the time of the child’s birth.
  • Unless proven otherwise, when a child is born during a marriage, the mother’s husband is assumed to be the biological father.
  • If a man lives with the mother and child as a family, and he has shown a dedication and connection to the child, he may also be presumed to be the father.

Basically, if a man acts like a father, even if he is not the biological parent, he may still be recognized as such in a legal sense.

Rescinding a Declaration of Paternity

In California, either party may rescind a declaration of paternity within the first 60 days. If there is a question of parentage, it is possible to undergo a DNA test to determine whether a man is, in fact, the father.

This, however, comes with a statute of limitations. In this state, you have two years to file a motion for genetic tests after paternity has been pronounced.

In some circumstances, even if a man undergoes these tests and it is determined he is not the biological father, the court may decide it is in the child’s best interest to deny this declaration.

In making a decision like this, the judge will take a number of factors into account, including:

  • The age of the child in question,
  • The length of the relationship,
  • How long it has been since the declaration was signed.

It’s because of this that many men often continue to support children they know for a fact are not genetically theirs.

Mistaken or Paternity Fraud

There is another side to this coin, however. Much of this presumes that, when a man discovers he is the victim of paternity fraud, he may want out. That he may want nothing to do with continuing to care for this child.

But that is not always the case. In some situations, the bond is strong enough that he may want to remain a part of the child’s life.

Especially in instances where a man has been acting as the father for a long time, even if he is not necessarily the genetic parent, he can still retain parental rights. Regardless of whether or not you are related by blood, it is possible to develop deep, fatherly feelings for a child. These don’t automatically go away because of a DNA test.

If you’ve been a child’s father since day one, looking at a result on a piece of paper doesn’t magically change the bond you share.

Related ReadingFighting False Abuse Allegations

Extended Impact of Mistaken Paternity or Fraud

Additionally, cases of mistaken paternity, whether accidental or intentional, can exact a substantial toll on the children involved, not just the parents. It can be psychologically damaging to learn that the person you looked at as your father is not actually related to you.

Again, that doesn’t necessarily diminish any connection, but it can be quite a shock and disruption. This can be further influenced by the age of the child and whether or not the father remains in the picture.

Without clear family histories, children are also open to additional health risks. There is the potential for hereditary diseases to manifest when no one is looking. It’s possible for ailments to be passed down, but because it’s not in the disclosed medical records, symptoms may fly under the radar.

A Tragic Example:

In one case, there were reports where a six-year-old boy was fishing with the man he thought was his father. He cut himself on a rusty fishhook. When they went to the hospital he was given antibiotics and died from anaphylactic shock. It turns out that his biological father had a severe allergy that he passed on unbeknownst to the other man.

That is obviously an extreme example, but it illustrates the significant consequences this kind of deception can have. Such situations won’t always be life and death, but the results can have catastrophic consequences for everyone involved.

There are ways to protect yourself from paternity fraud. Some are even pushing for mandatory DNA tests at birth.

Related Reading: Types Of Child Custody In California
Related ReadingWhat is the Guardian ad Litem and the Minor’s Counsel?

From The Radio

Our founding partner, Rick Jones, makes regular appearances on the Danny Bonaduce and Sarah Morning Show, where he addresses family law questions from listeners.

“I have a six-year-old son from a previous relationship and I just got married. My son’s father is not on the birth certificate. I’m wondering if something horrible should happen to me, what would happen to my son? Would he becomes my husband’s… would my husband get custody?”

Rick:And there’s been no adoption, correct?” 

Caller: “No adoption.”

Rick:Your ex, the child’s father, is that person in the child’s life at all?”

Caller: “Not really [in any way] that amounts to anything. He sees him every once in a while. Maybe every six weeks.”

Rick: “Is there a child support obligation?

Caller: “No, there’s not.”

Rick:And I assume there was no, what’s called a ‘paternity affidavit’ signed at the hospital when your child is born?”

Caller: “There was not.”

Rick:Well you’ve got an interesting one.  There certainly is no ‘automatic default’ to your husband. So if you really want to make sure you button this up, you may reach out to the biological father and propose an adoption.

And the reason why that may be a benefit to him too–that you may be able to get this agreement–is you’re basically saying, ‘That’s going to take you off the hook for any argument of child support going forward. So it’s your quid-pro-quo in terms of the deal.’

“That’s what I would really recommend. If there’s an adoption, your current husband steps in with the same rights as the biological father would have had.

Danny:Hey, let me ask you one quick question. The ex, the biological father, is he a decent guy? Is he a stand-up guy?

Caller: “Noooooooo.”

Rick & Danny Hatch a Plan

Danny:Well then let me tell you right now, what’s gonna happen is he’s going to blackmail you. ‘You want me to sign anything? $1,000. You want me to do anything? $5,000.’ I’m telling you, your ex is no good, and he’s the biological father of your kid, not seeing him once every six months, I’m saying, get your lawyer. You need a lawyer because this guy’s going to give you trouble.”

Rick: “You know, I’m going to double up on that Danny. You’re 100% right. And because you recognize that leverage he could use, exert the leverage on your own first. Meaning, your step is to go seek child support.”

Danny:Yes! And then he’ll do this, ‘This is blackmail! You cancel child support and I’ll sign the thing.’