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Paternity Lawyers In San Diego

PATERNITY SUIT – PETITION TO ESTABLISH PATERNITY

Filing a parentage action is necessary to establish the “legal” father of a child under the California Family Code, which is specifically called the “Uniform Parentage Act” in California (see Family Code Sec. 7600).  Paternity cases are started by the filing of a Petition to Establish a Parental Relationship and a form called the Declaration under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) with the appropriate courthouse location within San Diego County.

It is a common myth that only fathers can file a petition to establish paternity.  Mothers often file parentage actions for various reasons, including wanting to establish the legal father of a child for inheritance purposes, filing a request for child support (this can also be done through the Family Support Division also) and most importantly, to establish child custody and visitation orders.

How Do I Establish A Parental Relationship Between A Mother or Father And A Child?

Simply having your name on a child’s birth certificate does not mean you are the legal parent in the eyes of the court.  There are several ways to establish your rights as a parent in the eyes of the court.

If a child is born to parents who are unmarried, or if there is a question as to who is the father of the child born to an unmarried woman, the only way for a parent to establish and enforce their legal right as a parent is to file a paternity action in family court.  This is true even if a parent executed a voluntary declaration of paternity at the hospital.

What is a Paternity action?

Paternity suits can arise when there is uncertainty or a disagreement regarding the identity of a child’s father. Often, parents will use a paternity action to establish a man’s legal obligation to provide for his child.  A paternity case can be initiated by either the mother or father by filing a Petition to Establish Parental Relationship. The Family Court has jurisdiction (the ability) to hear and enter orders and judgments on all issues related to the parent-child relationship.  A child support case can also be filed by the Department of Child Support Services (DCSS) at Family Support Division (FSD), another division that hears issues regarding finances and custody of children.

In some cases, a man will use a paternity action to establish fatherhood for the purpose of obtaining custody and visitation rights. Until a child custody and/or visitation order is entered by the court stemming from a paternity action, there is usually no legally recognized mechanism for unmarried persons to enforce custodial rights.  A paternity action may also involve a party’s request to change the legal name of the minor child and/or obtain reimbursement for pregnancy costs.

Why Would  I File A Paternity Action?

By filing a paternity action, each parent has a right to conduct a non-invasive paternity test via oral swab.  If the paternity test results in a genetic match, either parent can seek to obtain a judgment of paternity.  Upon the entry of a paternity judgment both parents have legal right to request child custody, visitation and support orders from the court.

Who Can Be Established As A Parent Under A Parentage Action?

There are several others ways to establish a parental relationship, including:

  • Voluntary Declaration of Paternity:  A form signed by the father at the hospital establishes paternity upon execution.  This can be rescinded within 60 days of execution.
  • Parentage By Estoppel: A court can order a parent, even if not the biological parent, to serve as the legal parent and enter a paternity judgment.
  • Artificial Insemination: If a woman is artificially inseminated with a man’s sperm, with his written consent, the donor can be established as the legal father.
  • Same Sex Parents:  Under the case of Alyssa B., same sex parents can be established as the legal parents through a paternity action.
  • Putative Marital Assumption:  Parents who attempted to marry, but the marriage was void for some reason, will be the presumed parents in a child born of that relationship for purposes of establishing paternity.

Why Don’t Parents Who Are Married Have To File A Paternity Action?

There is a marital presumption in California that if a child is born to a married couple, or within 300 days of death of either parent or the annulment or divorce of the marriage, the husband is presumed to be the biological father having legal rights concerning the child.

Where Should I file a Paternity Action?

In order for California to have jurisdiction (the ability) to enter a paternity judgment, the child must be either conceived, born, or artificially inseminated within the state of California.  If none of these prerequisites exist, the state in which conception, birth or artificial insemination occurred is the correct jurisdiction to file a parentage action.  Further, even if a child is conceived or born in another county other than San Diego, a San Diego court may still have the ability to hear and enter orders concerning parentage and the child depending on certain factors concerning the length of time a child has lived in San Diego.

Isn’t paternity established if the father is listed on the child’s birth certificate?

Not really.  The terms “establishing parentage” and “establishing paternity” mean that a court, or other appropriate governing body, judicially establishes that a man is a child’s father by making a judgment.  It occasionally happens that a man signs a “POP” declaration (paternity declaration) at the hospital and/or is listed as the father on the child’s birth certificate even though they are not the child’s biological father.  The courts in San Diego Family Law Divisions are the only entities that can “adjudicate” a child’s real, biological father.

What goes on in a “paternity” case in San Diego Family Courts?

Paternity cases are filed routinely in the San Diego Family Law Division by either parent that wishes to establish the legal father, child custody and visitation orders, or child support.  When a case is filed along with the appropriate filing fee, a judge is assigned to the case and the papers (which include a summons) are served on the opposing party, usually by a professional process server.  Once the papers are served personally upon the respondent, they have thirty days from that date to file a response.  If no response is filed, the person filing the case (the petitioner) may file a Request for Default to move forward in the case without the respondent.  If you were served with a petition, it is imperative that you file a response.  Usually, a party will file a Request for Order for various issues, including asking the court to establish custody orders and child support orders.

What is child support?

Child support is a payment by one parent to the other parent for the maintenance and support of the child.  Child support is set by a “guideline” computer program formula, which looks most strongly on the incomes of the parties, the amount of time each parent spends with the child, the tax filing status, and whether either party has any appropriate “deductions” from their income such as other children or spousal support ordered payments and medical insurance.  This guideline calculation is used by the courts in 999 out of 1000 cases (the court has the authority to “deviate” from the guideline amount in very special circumstances.)  Child support is intended to pay for the child’s housing, food and clothing and other necessary expenses.  The person paying child support to the other party does not have a right to question what the payments are being used for.

Who pays for childcare and unreimbursed medical expenses in paternity cases?

Childcare expenses necessary for a parent to work or attend job training is shared equally between the parents under California law, regardless of which parent’s custody the child is in when they spend time with a childcare provider.  Expenses for a babysitter so one parent can have free time is not shared between the parties.  Additionally, unreimbursed healthcare expenses such as co-pays, prescription medications for a child, counseling, and orthodontics are all shared equally between the parties under the law.  The court has to order (absent extreme circumstances) that both parties share these expenses equally.

Are the costs of pregnancy and childbirth shared between parents in a paternity case?

A mother may petition the court to have the father share in the expenses related to pregnancy and childbirth, and the court will often order reimbursement for those expenses if they exist.  It is not the mother’s sole financial obligation to bring a child into this world.  This request is made right on the Petition to Establish a Parental Relationship.  It is important for the party requesting reimbursement of these expenses to make a motion for reimbursement of these expenses, or include these expenses in the list of items to be addressed at trial, and include evidence of the payment of these expenses.  If done properly, the court will never hesitate to order the other party to pay one-half of these necessary costs.

SETTING ASIDE A PATERNITY JUDGMENT – FAQs

As family law experts we have been approached by potential clients over the years wanting to know whether a “paternity” judgment can be “set aside”, meaning that the court will simply “undo” a paternity judgment previously entered.  The answer is that paternity judgments can be set aside under limited situations.

What laws govern the set aside of paternity judgments?

The California Family Code, Division 12, Part 4, Article 1.5 is the applicable law that provides the grounds and procedure to “set aside” or vacate a paternity judgment.  These code provisions can be extremely complex to navigate, and there are various prohibiting rules for bringing such a motion that a family law litigant seeking to set aside a judgment should understand completely before trying to file a motion to set aside.  Most notably, Family Code 7646 states that if genetic testing indicates that a previously established father is not the biological father, a motion to set aside must be brought within one of the following time periods:

  • Within a two-year period commencing with the date on which the previously established father knew or should have known of a judgment that established him as the father of the child or commencing with the date the previously established father knew or should have known of the existence of an action to adjudicate the issue of paternity, whichever is first, except as provided in paragraph (2) or (3) of this subdivision.
  •  Within a two-year period commencing with the date of the child’s birth if paternity was established by a voluntary declaration of paternity. Nothing in this paragraph shall bar any rights under subdivision (c) of Section 7575.

What are the grounds to set aside a paternity judgment?

The “grounds” to set aside a paternity judgment are really only that the father was not ever properly served with notice and an opportunity to be heard or that genetic DNA testing results in establishing that the man is not the biological father of the child.  However, every paternity litigant should notice the timelines set forth above.  Even if a man was not properly served with notice of the paternity case, if the court believes that the man actually still knew about the case or should have known about the case, the statute of limitations begins to run on the date the man knew or should have known about the case.

What is a “putative” father?

Despite the fact that a man may not be the biological father of a child, and even though genetic DNA testing may conclusively determine that the man is not the biological parent, the court nevertheless has the power to adjudicate the man as the legal father of a child under certain circumstances.  Pursuant to Family Code 7648, if the court finds that the conclusions of the experts (i.e. DNA experts) indicate that the previously adjudicated father is not in fact the biological parent, and even though a motion is brought properly under the Family Code and within the requisite time frame to bring such a motion to set aside, the court can deny the motion to set aside or vacate the judgment establishing paternity if it is in the best interests of the child.  The court is required to analyze the age of the child, the length of time since the judgment establishing parentage was entered, the relationship between the child and father, information from the biological father that he does not oppose the continued relationship, the benefit or detriment to the child for continuing the relationship, and other factors.

Can a Petition to Establish a Parental Relationship be used to establish a mother-child relationship?

Yes.  Pursuant to Family Code Section 7650, a petition may be brought by either parent, or any “interested person” to establish a parental relationship.

I Just Learned Of A Paternity Judgment Naming Me The Father, Can I Have It Set Aside?

The short answer is maybe.  There are very specific rules allowing for paternity judgments to be set aside, or voided.  There are very strict timing requirements to filing a motion to set aside a paternity judgment.  By setting aside a paternity judgment, a parent’s child support obligation can also be set aside.  Consult with an attorney as soon as you learn of a paternity judgment or your wages begin being garnished for a support order.  Contact our offices to discuss this matter immediately upon learning of such judgment.

How Do I Change Or Amend A Child’s Name On A Birth Certificate?

A name change of a child must be requested and ordered through the family court.  If the parents agree to the name change, a stipulation (agreement) can be filed with the family court.  If the name change is contested or not agreed upon, a motion must be filed in family court and the court will conduct a best interests analysis.  Factors the court will consider include the age of the child, the number of years the child has used the current name, each parent’s level of involvement with the child and any other factors that would be in the best interests of the child.  Upon the family court ordering a child’s name change, a certified copy of the order must be served upon the California Department of Health & Human Services together with the proper application as provided here.

San Diego Paternity Experts

Our San Diego paternity attorneys specialize in representing mothers and potential fathers in all types of paternity actions. Whether you are seeking a paternity action to obtain child support or to avoid paying child support for a child you believe may not be your biological child, or to establish custody and visitation rights, our experienced attorneys look forward to working with you.

In addition to obtaining orders for child custody and child support, typical issues involved in a paternity action include obtaining a paternity test, obtaining a judgment for paternity or setting aside a default judgment of paternity through either the Family Court or Department of Child Support Services (DCSS).

Our experienced paternity attorneys look forward to providing high quality, aggressive representation to obtain your goals and desires while protecting your legal rights and interests.

Contact a San Diego Paternity Attorney

For further information regarding filing a paternity petition, setting aside a paternity judgment, or to discuss the consequences or ramifications of a paternity suit, we invite you to schedule a free confidential consultation with an experienced San Diego paternity attorney by calling us at 619-284-4113, e-mailing us, visiting us, or filling out our intake form on our Contact Us page. The parking and confidential consultation are free.