San Diego(619) 284-4113 Escondido(760) 208-1604

When Paternity and Divorce Collide

When Paternity and Divorce Collide

Posted on September 18th, 2012

Attorneys Specializing in Divorce and Paternity

The recent case of Irmo Wilson & Bodine, (2012) (filed July 2012) presents an interesting cross-issue between paternity and divorce matters.  Recall that there are typically two mechanisms in which to file a lawsuit for child custody orders, filing a Petition to Establish a Parental Relationship (called a paternity case) and Petition for Dissolution of Marriage (called a divorce case).  The trial courts also have jurisdiction to hear custody issues in domestic violence matters.

What happens, however, when there is a paternity suit and divorce?  In Wilson, the parents of a child were not married when they had their child.

In 2002, Mother filed a petition to establish a parental relationship and obtained custody and child support orders based on the parties’ voluntary declaration of paternity. A daughter was born in 2003. Mother and Father married in 2005, but separated in February 2008. Mother filed a petition for dissolution in 2008 and a status only dissolution judgment was entered in 2009.

In 2010, Father filed a motion in the paternity case seeking modification of the child support order and a determination of his arrearage. DCSS (Dept. of Child Support Services) said he owed over $150,000, a sum that included time when he was living with and married to Mother. Mother’s response asserted Father owed about $85,000 in child support arrears for the period between March 1, 2002 and July 23, 2010, explaining that her calculation gave Father credit for his support of the child when they lived together and during the time they were married.

At a hearing in 2010, the court found Father owed $1,600 per month for the period of March 1, 2002, to June 30, 2003. At a further hearing in 2010, Mother acknowledged the support order was “abated” from July 2003 to January 2008 because the parties were living together but claimed support resumed in February 2008 when they separated.  For good reason, Father disagreed. Father calculated guideline child support would only be $42 per month for the period after they separated. As to the 2002 child support order, Father contended it was extinguished by the marriage. Mother’s response to this contention was that the 2002 support order by its own terms was to remain in effect until the child attained majority, was emancipated, died or further order of court.

The Court of Appeal said, “In California, paternity actions, like divorce actions, involve a determination of the separate rights and liabilities of parents for their children. The marriage or remarriage by those parents automatically creates joint rights and liabilities for custody and support of the child and extinguishes any preexisting order of child support entered for the child’s benefit. Upon the termination of the marriage or a second marriage between parents, custody and support issues will be visited anew. (§§ 3600, 4001; Irmo Wittgrove (2004) 120 Cal.App.4th 1317, 1326.) The dissolution legal proceedings have built-in protections for the best interest of the child. … Thus, the child will not be harmed by the fact that an earlier child support order was terminated upon the marriage or remarriage of the parents.”