Paternity Suits Explained

A paternity suit, also called a parentage action, is a lawsuit, filed by a child’s mother, a child’s alleged or presumed father, or a child support court lawyer, in order to legally determine whether or not an alleged or presumed father is the child’s biological father and and/or the child’s legal father.

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Note: A biological father is not necessarily a child’s legal father, and vice versa. A legal father is the father who is legally responsible for, and has legal rights to, a child, regardless of whether or not he is the child's biological father.

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Contrary to common belief, placing a man's name on a child's birth certificate as the child’s father does not necessarily prove that the man is the child’s biological or legal father. Also, contrary to popular belief, a blood test is not the only way to prove, or disprove, biological paternity.

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Alleged and Presumed Paternity

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If a husband and wife have a child during marriage, the child is presumed to be the biological child of the husband. This is true so long as the child’s parents were married for at least two hundred seventy days before the child’s birth during marriage (9 months).

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A presumption of fatherhood may also exist where the father welcomes a newborn child into his home and openly holds the child out as his own child even though he was not married to the mother at the time of the child’s birth.

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The legal presumption of paternity may be rebutted by the husband, the mother, a child support court, or a man other than the husband (apparent father), in a paternity suit.

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Note: A father who is not married to the mother of his child at the time of the child’s birth must establish paternity or he may lose rights to his child to another man who makes effort to establish paternity.

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How to Establish Paternity

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There are two ways a person can establish legal paternity of child (legal fatherhood) if the child’s parents were not married at the time of the child’s birth:

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• A voluntary acknowledgment of paternity, also called voluntary declaration of paternity, or

• A paternity suit.

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A voluntary declaration of paternity may be signed by the alleged father (unmarried) at the hospital following a child’s birth, or any time thereafter in front of a notary public or Department of Child Support Services Lawyer.

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A voluntary acknowledgement of paternity must be filed in child support court in order to be of legal effect. Thereafter, the alleged father's name is included on the child's birth certificate as the child’s legal father.

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Note: Once a voluntary declaration of paternity is signed and filed it may be difficult, if not impossible, to contest. This is true even if a DNA test later proves that the man who signed the voluntary declaration of paternity is not the child’s biological father.

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A voluntary declaration may be rescinded within sixty days from the date of signing unless the Department of Child Support Services has relied on the declaration of paternity to establish child support.

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The necessary forms required to establish or contest paternity may be obtained from either the Judicial Counsel of California, the family law court, or from local family law attorneys.

 

Important: Please keep in mind that these paternity forms do not provide information on how to legally present or defend a paternity suit and other important paternity law and procedural requirements. If you are an alleged, apparent, or presumed father, who is attempting to establish or defend a paternity suit, you should seek the advice of our experienced family law attorneys without delay.

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Note: Delay in establishing or defending paternity suits may adversely affect your rights. Also, willful failure to obey a court order to take a DNA test may lead to civil and criminal penalties (i.e. contempt of court).

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Legal Benefits of Paternity

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As stated, a legal father has rights to, and is responsible for, his minor children. A father’s rights includes the right to receive child support from the mother or child’s legal guardian, the right to care for and raise his child (child custody), the right to visit and travel with his child (child visitation), the right to receive relevant medical information about the child’s mother, the right to challenge a stepparent adoption of his child by a third party, the right to receive wrongful death benefits, the right to add his child to his health insurance, and more.

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For the mother, once paternity is established, she has the right to receive child support from the legal father and the right to receive the biological father’s medical history information (subject to limitations).

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For the minor child, once paternity is established, he or she has the right to receive financial, emotional, and physical support from his or her father.

 

Also, a child has the right to receive wrongful death and social security benefits from his or her legal father (if available).

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Challenging Paternity

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A declaration, or presumption of paternity, may be challenged (contested) in court up to two years after the signing of the declaration of paternity or up to two years after a presumption of parenthood attaches. Challenging paternity is different than rescinding a voluntary declaration of paternity (see above).

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For example, if husband assumed that his wife’s child is his (husband’s) biological child, but husband later discovers that his wife’s child is the biological child of another man, then husband may file a paternity suit within two years of the child’s birth to have his (husband’s) parental rights, and parental obligations, terminated.

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In the example above, husband must file a paternity suit to disprove a biological relationship to the child that is legally presumed to be his by virtue of the fact that husband and child’s mother were married when child was born.

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Note: There are some limitations to this remedy for a married man who does not know the identity of the child’s biological father and/or the biological father is not a party to the paternity suit. In other words, a court may declare that a man’s non-biological child, who was born during the man’s marriage to the child’s mother, is nevertheless the child’s legal father. This is true even if the man brought the paternity suit within two years of the child’s birth. The reason for this is that the court has the discretion to make orders that are in the best interest of the child.

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Conversely, a man who biologically fathered a child to a married woman is not presumed to be the father of the child. Therefore, the biological father must file a paternity action in order to establish his fathers’ rights and obligations.

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Challenging Paternity Suits

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Paternity suits may be challenged (contested) in several way, including the presentation of evidence that proves the following:

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• Improper DNA test procedures or analysis

• Paternity Fraud (use of another man’s DNA)

• Proof of infertility or sterility

• Fraud or duress that induced a man to sign paternity declaration

• Proof of mother’s infidelity in marriage before the child’s birth

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Also, if DNA test results are positive for paternity, the father may contest the results and request a second DNA test.

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Note: The court does not except private DNA test results. In fact, the court will not receive DNA test results unless the court ordered the DNA test in the first place. Information on where to take a DNA test is given by the judge at the time the judge orders the DNA test.

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For example, if mother offers DNA tests to the court, which mother reportedly obtained from a private DNA testing company, and the DNA test results purport to indicate that a particular person is, or is not, the biological father of her child, then those DNA tests will not be accepted by the court as proof of paternity.

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Equitable Father’s Rights

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If an apparent father has a close relationship to a child the court may grant equitable father’s rights (child custody and/or child visitation) to the apparent father. This is true even if the apparent father’s paternity was successfully challenged by the biological father. This is most common in situations where an apparent father is believed to be the biological father and he has already made an emotional connection to the child.

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Pre-Birth Father's Rights

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A paternity suit may be filed before a child is born so that the father may begin to establish a parental relationship with a child at the earliest opportunity and to ensure that his father's rights are secure before the mother attempts to give the baby up for adoption.

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However, a successful paternity action does not give the father the right to interfere with the mother's health care choices for giving birth and the father does not have a right to interfere with a woman's right to terminate a pregnancy (abortion) because the mother ordinarily has the legal right to make that choice under California law.

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Divorce, Legal Separation & Annulment Impact on Paternity Suits

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If the child parents were married at the time of the child’s birth, then paternity is presumed (See above). If the child’s parent divorce or legally separate after the child is born, then the presumption of paternity is not severed.

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However, if the child’s parents were married at the time of the child’s birth, but the child's parents obtain an annulment of their marriage after the child is born, then the presumption of paternity for the father may be lost with the court’s granting of the annulment. This means that a paternity suit must be filed by the child’s father in order to establish his parental rights and/or parental obligations.

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DVRO & Paternity Suit

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A request for domestic violence restraining order (DRVO) may include a concurrent request to establish paternity. In other words, the court does not always require a child’s parent or legal guardian to fully litigate the issue of paternity before that parent or legal guardian may request emergency (ex parte) and temporary orders that are necessary to protect the child.

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The reason for this is that domestic violence restraining orders only apply to persons who are domestically related (i.e. close family relationship or dating relationship). If a person were required to prove a domestic relationship before paternity, or vice versa, before seeking protection of his or her child, it could cause irreparable physical harm to the child.

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For example, if a child’s biological father, who was never married to his child’s mother, seeks an emergency restraining order from the court, which is intended to protect his child from immediate harm by the child’s mother, the court is not going to make father resolve paternity issues, which could take months, before allowing father to request orders of protection for his child.

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Juvenile Dependency Court & Paternity

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If mother is alleged to have abused or neglect her child, and the juvenile dependency court has started a petition to remove mother’s child from her (mother) because of mother’s child abuse or child neglect, then the child’s biological father may file a paternity suit in the juvenile dependency court in order to establish his right to take custody of his child. This assumes the father has not already established paternity rights or is otherwise already the presumed father of the child.

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However, a juvenile dependency court is not obligated to make emergency orders as to the paternity of a child. The reasons for this is that the child is considered to be in good care with foster parents until paternity might be established.

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To learn more about paternity suits (parentage actions), or to speak to an experienced family law attorney about paternity suits, father’s rights, child custody, child support, parenting time, attorney fees, legal separation, or divorce, contact our family law attorneys today for a free and discreet consultation. Call today!

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900-307-2645

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