paternity Archives - Lonich Patton Ehrlich Policastri

How Is Paternity Determined In California?

September 8, 2021/in Family Law /by Virginia Lively

The issue of paternity is complex and the laws surrounding it vary state by state. If you are a father or couple who are seeking to determine your parentage in California, you may be wondering what your next step should be. What is a paternity test? How do you get tested? In California, there are three ways you can go about establishing paternity.

Go To Court

When parents think of determining parentage, this is typically the method they think of. This also tends to be the hardest method to determine paternity. If a child’s mother is trying to prove the parentage of a child, and the other parent is denying their paternity, a mother can go to court to establish it. Alternatively, if an alleged father wants to prove their paternity to have rights to custody of a child, they can also go to court to establish parentage.

When going to court, the judge will order a genetic paternity test.. If the alleged father refuses, the noncooperation can be considered evidence of parentage.

To go to court, you must fill out and file several legal documents. These are complex and require a trained eye. Please consider hiring an experienced paternity attorney. LPEP Law serves the greater Bay Area. Set up a free consultation with them here.

Get The Child Support Agency To Determine Paternity

The local child support agency has a right to ask the court for an order on paternity, just as the child’s mother or alleged father does. Having the child support agency provide this service for you is free and can take some of the stress off yourself. In addition to establishing parentage, they will also file for a child support order.

You can obtain these services by calling the local child support agency and setting up an appointment to open a case for paternity and support. If a father denies being the parent of a child, a mother can even open a case while still pregnant for a genetic test to be administered after the child is born.

If a parent is on welfare for the child, the child support agency will automatically open a case for paternity.

Sign A Voluntary Declaration

A declaration of parentage is a legal document that parents sign to claim themselves as the legal parents of a child. It is always voluntary. This document is usually signed by both parents in the hospital after a child is born. However, in cases where this didn’t happen, the declaration can still be signed as long as certain rules are followed.

For a declaration to be signed outside of the hospital, there are only certain public locations that the form can be signed at. The form must be signed in the presence of the local child support agency, the welfare offices, the Registrar of Birth, the local superior court, or the local family law facilitator. You can find your California family law facilitator here. The form must then be filed with Child Support Services to go into effect, and then it holds the same weight as a court order establishing parentage.

After the declaration of parentage is filed, orders for custody and visitation can be filed by a judge. The Court can also make orders for child support. A voluntary declaration of parentage grants both parents who signed it an equal right to custody, but also means they both have a responsibility to support and provide for the child. To learn more about voluntary declarations of parentage in the state of California, visit here.

When You Don’t Need A Paternity Case

There are certain instances in which you don’t need a paternity case in California. These include:

An unmarried couple signs a voluntary declaration of paternity.
You are married to the other parent. (This applies to same sex marriages and heterosexual marriages alike).
Two parties in a DVRO case agree to paternity of a child and the court entered judgement about paternity.
The child support agency filed a paternity case.

If you live in the State of California and are curious about starting a paternity case, get in touch with our San Jose, California attorneys today. Get questions like “what is a paternity test?” answered. We can help you with the complex paperwork that comes with going to court and can help ensure the process goes smoothly. We offer free 30-minute consultations with our experienced team of attorneys. You can set up your free consultation here. To learn more about paternity, visit us here.

What Are Fathers Rights In Child Custody?

October 5, 2019/in Family Law /by Riley Pennington

It used to be that a mother was seen as the primary caregiver of a child. This led to custody often being awarded to mothers over fathers. Things have changed and the courts realize that fathers have a substantial effect on a child’s life. Fathers rights are legitimate and you’re just as likely to gain custody as the mother – barring certain circumstances.

Determining Custody

Child custody in California is determined by the best interest of the child. This is a standard used in San Jose and the rest of California to maintain equality in custody cases. This means that the court will determine which parent has the best interest of the child in mind and will provide the best environment for the child.

As a father, you have the right to seek custody of your child. You and the mother both have the right to request visitation rights. Both parties are viewed as equal by the courts. Just like in any child custody case, there are a few things that could prevent you from gaining visitation rights or custody of your kids.

If there is evidence of child abuse, domestic abuse, drug abuse, or addiction by either party, this will impact child custody.

The courts make it a priority to keep both parents as involved in their kids’ lives as possible. This is because, in San Jose, the courts believe children benefit from a healthy loving relationship with both parents.

A fathers spends time wityh his child of the beach thanks to the equality of fathers rights in CA.

As a father, if you have a better relationship with your child and are better able to care for them, the courts are likely to award you custody. This is all based on case to case, however.

Paternity And Custody

To be eligible for child custody, a male must prove (or have done so previously) parentage or paternity. In San Jose, these terms are used synonymously.

Paternity can be established in a variety of ways.

VDP – This is a voluntary declaration of paternity. It is used when a child is born in a medical setting and both parents or parties acknowledge each other as the legal parents through signing this form. This adds the father as the rightful parent on the birth certificate alongside the mother.
Paternity/ Parentage Action – A paternity test can be ordered by multiple parties to determine parentage. A potential father seeking to legitimize his claim or a mother using the services of the child support agency are a couple examples.

In some cases, paternity may have already been established. A child born in marriage is considered to be the child of both married parties. If the parents are unmarried but are living together in a familial situation, the male is considered the child’s father. This is, of course, if he has taken on a parental role with the child despite not being the biological father in some cases.

Fathers Rights And Child Support

Fathers Rights grants the primary custodian rights to child support

To be determined as the primary caregiver and custodian of a child means that child will live with you. You are responsible for housing and caring for the child the majority of the time, and can determine where they live. The other parent may be granted visitation rights, barring any circumstances mentioned above that jeopardize the safety of the child.

As the primary custodian, you have the right to request child support from the other party. This is a sum paid monthly that helps with the costs of raising your child.

If you’re a father seeking information on fathers rights, contact an experienced attorney at Lonich Patton Ehrlich Policastri. We offer free 30 minute consultations.

How to Establish a Child’s Parentage

June 17, 2016/1 Comment/in Family Law /by Gina Policastri

When a child is born to a married couple, California law automatically establishes both spouses as the child’s parents. However, while nonmarital births peaked in the late 2000s, four out of every ten children are still born to unmarried women.* Additionally, nonmarital births are increasingly likely to occur in cohabiting unions. Yet, even when born to a cohabiting (but unmarried) couple, a child’s parentage is not automatically presumed—he or she will not automatically receive the same benefits that a married couple’s child will receive. As a result, it is very important that unwed parents legally establish their child’s parentage.

Establishing parentage is important for the parents and the child because it entitles all parties to a host of legal rights and privileges: child support, legal identification documents, both parents’ names on the child’s birth certificate, access to family medical records and history, health and life insurance coverage, the right to inherit, and the right to receive social security and veteran’s benefits. Additionally, once parentage is established, a court can make orders concerning the above listed rights and privileges and concerning child custody, visitation, name changes, and expense reimbursement.

The parentage of a child born to an unmarried couple can be established by either 1) a voluntary signing of a Declaration of Paternity, or 2) a court order. First, a Declaration of Paternity can be signed by both parents once the child is born. The form can be signed at the hospital or at a later date, but to become effective, it must be filed with the California Department of Child Support Services Paternity Opportunity Program. If signed and filed properly, a declaration form has the same effect as a court order.

Second, if a parent refuses to sign the declaration, an individual, with the help of a family law attorney or through a local child support agency, can go to court to establish parentage. In California, section 7611 of the Family Code provides several rebuttable presumptions of natural parent status: 1) the presumed parent and the child’s natural mother are married when the child is born, or the child is born within 300 days after the termination of a marriage, 2) before the child’s birth, the presumed parent and the child’s natural mother attempted to marry each other, 3) after the child’s birth, the presumed parent and the child’s natural mother have married or attempted to marry each other, and with consent, the presumed parent is named as the child’s parent on the birth certificate or is obligated to support the child under a written promise or court order, and 4) the presumed parent receives the child into his or her home and openly holds the child out as his or her natural child. If a court finds that one these presumptions applies, it will issue an order establishing parentage.

Additionally, section 7551 of the California Family Code provides that in civil proceedings where paternity is relevant, the court may order (of its own initiative or upon suggestion by an involved party) that the mother, child, and alleged father submit to genetic tests. As provided by section 7555 of the California Family Code, if the court finds that the ordered genetic testing establishes paternity to a certain degree verified by experts, there is rebuttable presumption of paternity, and the court may proceed with support and custody orders.

For more information about establishing a child’s parentage in California, especially if you are interested in pursuing child support and/or custody of your child, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

*http://www.cdc.gov/nchs/data/databriefs/db162.htm

http://www.courts.ca.gov/1201.htm

Paternity Woes: Timing Matters

February 26, 2014/in Family Law /by Gretchen Boger

In Californian family law, there are a few important presumptions. Most have to do with marital property. However, one presumption is all about paternity. In California, a man is presumed to be the father of a child that is born to his wife during their marriage.* In a recent case, this presumption complicated matters for a man, his ex-girlfriend, and her new husband.

Victor and Mary were “romantically involved” when Mary became pregnant, although they never married. One month before she was due to deliver, however, Mary ended her relationship with Victor. After that, she acted fast. She married another man, Roger, before she had even delivered her baby. Shortly thereafter, her baby boy was born.

Due to the previously mentioned presumption, Roger was considered the baby’s father under California law. Mary and Roger, now married, took the baby into their home, and Roger treated the child as his son. Victor knew the baby was his, but he was not allowed to see his son.

After eight months, Victor filed a paternity suit stating that he was the biological child of Mary’s son. Unfortunately for Victor, Mary fought back, raising the presumption, and the trial court held that Victor did not have standing to claim paternity. His suit was dismissed.

Nevertheless, Victor appealed the trial court’s decision. The appellate court held that the presumption can be rebutted, especially where there is evidence that the child was not conceived during the mother’s current marriage. So, because Mary’s son was conceived well before she was married to Roger, Victor could rightfully file his paternity suit.

Although the trial court’s decision was overturned, Victor is still the boy’s presumed father. However, now Victor will have a chance to prove that he also deserves to be in the boy’s life because of their biological ties. Sadly, more litigation is on the horizon for these parties.

Paternity cases can be dramatic and complicated. If you find yourself in a difficult paternity situation, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*See California Family Code § 7611.

Sperm Donors: Are You (Legally) My Father?

July 19, 2013/in Family Law /by Gretchen Boger

When actor Jason Patric broke up with his long-time girlfriend, Danielle, he told her he didn’t have any money to give her at the end of their ten-year-relationship – but he could give her his sperm so she could have a baby. In return, Danielle agreed to never tell anyone, never to ask for child support, and made herself an appointment to be artificially inseminated (this is important). In 2009, Baby Gus was born, and true to his word, Jason never paid child support. Then last year, Jason decided he wanted to be part of Gus’ life after all and he filed for 50/50 custody. Fast forward to today, and Jason’s story has evolved from Hollywood headline-fodder into a California legislative bill: Senate Bill 115 (SB 115).

Under current law, sperm donors are not legally considered to be the natural fathers of the children born using their donated sperm except under certain circumstances.* Furthermore, Cal. Fam. Code § 7613(b) makes it clear that if a man provides his semen to a licensed physician, surgeon, or sperm bank for the purpose of impregnating a woman who is not his wife, the man is legally barred from claiming parentage of the child the woman conceives.**

For example, in a 1986 case, Jhordan C. v. Mary K., a man gave his semen directly to a woman to artificially inseminate herself. The Court held that these facts did qualify for the statutory preclusion of paternity, because a California statute required the semen be instead given to a licensed physician. Accordingly, the Court allowed the donor to raise his claim for paternity.*** Conversely, a strong aspect of Jason and Danielle’s case is that she was inseminated by a physician – their case was not statutorily barred because her pregnancy did not result from a do-it-yourself insemination.

The purpose of the current artificial insemination laws is to allow unmarried women and women married to an infertile spouse the freedom to conceive via a sperm donor without the fear that the donor would interfere following the baby’s birth by asking for parental rights. However, SB 115 now seeks to allow a specific group of sperm donors to claim parentage – any donor who has “received the child into his home and openly holds out the child as his natural child,” regardless of the method of conception, would be presumed to be the father of the child. SB 115 passed the California senate in April 2013 and now, it’s up to the California assembly to determine if the bill will be signed into law. This raises questions about what qualifies as “openly holding out” a child as one’s own. There are many definitions of the concept of “family,” and the impetus for agreements to claim, or not to claim a child can change over time.

Parental rights can be a complicated and confusing issue. If you have any questions regarding your parental rights and obligations, or you are simply looking for more information regarding your legal options, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex Family Law proceedings and are happy to offer you a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*The Uniform Parentage Act, http://codes.lp.findlaw.com/cacode/FAM/1/d12/3.

**Unless the donor and the woman agreed otherwise in a signed writing prior to the conception of the child. http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0101-0150/sb_115_bill_20130408_amended_sen_v97.pdf

*** Jhordan C. v. Mary K., 179 Cal. App. 3d 386 (1986).

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