Paternity Actions:” Are they really necessary?”

If you have a child with an ex girlfriend, and not in a marriage, then you technically are not given any legal rights as a father until you establish paternity, even if your name is on the birth certificate. You have nothing enforceable until a court establishes paternity and makes court orders on custody and visitation.

If you are not certain you are the father, or you think you are, but wish to make sure, then you can ask for a paternity test. In over 25 years, attorneys in FRLG have seen many cases where the man, who was dating the woman, was told by her that he was the dad so he allowed the court to declare his the father but only found out later that she was seeing someone else. Then it was too late to overturn the court’s ruling and this man was made to pay child support.

Paternity is an issue which arises whenever a child is born out of a non-marital relationship. Less often, it can be an issue in marital relationships (when one party questions the paternity of a child born during the time of a marital relationship). Paternity is a complex issue in family law practice which requires expert legal analysis and should be addressed with the same detail, attention, and diligence as other legal issues in family practice.

The issue of paternity is a significant part of family practice and one we deal with often. The legislature enacted the UPA (Uniform Parentage Act) in 1975, which is now encompassed in the California Family Code (commencing with Family Code section 7600).

Paternity actions can include the determination of: (1) physical custody and visitation rights – with whom the child resides/visits); (2) legal custody – the right to make decisions relating to the health, safety, and welfare of a child, including, but not limited to, choosing a child’s place of residence, physicians, and selection of school, and (3) child support. Child support, similar to dissolution of marriage cases, is governed by the Statewide Child Support Guideline, which is found in the Family Code Section 4050.

The legal parent and child relationship gives rise to numerous legal rights, duties, and obligations, similar to those found in marital dissolution cases when custody and visitation and child support are at issue. Typically, when a child is born out of a non-marital relationship (which is the most common scenario where paternity of a child is raised as an issue in legal proceedings), one parent will file a Petition to Establish Parental Relationship and cause this Petition to be served on the other parent, at which time the parentage case formally commences. It is also common to concurrently file a Request for Order to establish a custody and visitation schedule as well as a request for child support.

There is significant overlap between the issues an attorney addresses in dissolution of marriage cases and in parentage cases. The policy of the law remains the same as it relates to a determination of the custodial/parenting schedule for the child, i.e., the Court is mandated to order a custody schedule which serves the best interests of the minor child. It is always paramount that the needs of a child, including the child’s health, safety, and welfare, be at the forefront of parenting schedules. The parties can negotiate and resolve the custody issues on their own or with the assistance of counsel. If the parties cannot reach an agreement on the issue of physical custody/parenting schedules, then a court hearing will likely be sought where after hearing the evidence, the court will make orders regarding legal and physical custody as well as the appropriate parenting schedule for the parties.

The Family Code provides that a person’s status as the legal parent of a child may arise in a number of different ways, including, but not limited to, giving birth to a child, the operation of legal presumptions under the Uniform Parentage Act that apply to a person who receives a child into the home and holds out the child as his or her natural child, an execution of a voluntary declaration of parentage, adoption, and other means.

Further, the California Supreme Court has found that a child may have two legally recognized parents of the same gender. In certain circumstances, when paternity is in question and/or contested by a party named (by the other parent or party) as the parent, a paternity test utilizing DNA samples from the parties and the child may be ordered to determine the biological parents of a child.