paternity means to establish who a child’s legal father is. The child’s
legal father is responsible for financially supporting his child, and
he has the right to seek custody and visitation of his child. If a child’s
parents were married at birth, they are considered the child’s legal
parents. But, if a child’s parents are not married, paternity must
be legally established before the courts can make orders for
child support and
child custody. In other words, an unwed biological father has no rights or responsibilities
towards his son or daughter until paternity is established.
Once in a while, a woman will be married to one man, but she’ll become
pregnant by another man –not her husband. In this scenario, it’s
important that the biological mother and father and the mother’s
husband understand that biology doesn’t always trump marriage in
California paternity cases.
According to the California Courts, “If parents are married when
a child is born, there is usually no question about parentage. The law
assumes that the married persons are the child’s legal parents,
so parentage is automatically established in most cases.” What does
this mean to biological fathers who impregnate married women? It means
that the law automatically assumes the child is the husband’s; the
law presumes the husband is the child’s biological, legal father.
So, what rights does the mother’s boyfriend have? He has a right
to ask for a paternity test through the court; however, he only has two
years from the child’s birth to petition the court for a paternity
test. If the man who fathered the child misses this window, the husband
is the child’s legal father for the rest of the child’s life.
What’s more, the biological father loses his rights to his child.
Are there any exceptions to the two-year rule? Yes, if after the child’s
birth the husband discovers that he may not be the child’s biological
father, the two-year clock to question paternity starts from the date
the husband discovered the new information.
What if the Marriage Ends in Divorce?
Suppose a woman’s husband is a child’s legal father, but he
is not the child’s biological father. Since birth, the husband believed
he was the child’s biological father, so he raised the child under
that presumption – as his own. Or, perhaps the husband knew all
along about the affair, but he still wanted to raise the child. Then,
one day the couple decides to get a divorce. Does that mean the legal
father (the husband), still has full parental rights?
In this scenario, the legal father’s parental rights would likely
not be affected by the divorce unless it had been less than two years
and the biological father petitioned the court for a paternity test. After
all, the husband had been raising the child as his own for years, whether
or not he knew that he was not the child’s biological father. In
the event of a divorce, the legal father, who is NOT the biological father,
could be granted sole physical custody, joint physical custody, or he
can be ordered to pay the mother child support.
What if the boyfriend decides to petition the court for a paternity test
and it comes back that the child is his? The boyfriend would be entitled
to visit his child, but he’d also be legally required to pay child
support. “If a parent is established as a legal parent of a child,
that person MUST financially support his or her child,” according to the
If this sounds unfair to you, you’re not the first to think this
way. Some people feel that California’s paternity laws should be
revised, but in the late 1990s, the California Supreme Court upheld the
belief that in some paternity cases, marriage prevails over a biological
link. In California, whenever a man fathers a child with a married woman,
he runs the risk of having the woman’s husband raise his child;
he risks being excluded from the child’s life. In other words, the
law may favor a stable marriage over a biological father’s interests.
To learn more, read about
disputing parentage here.
What About the Unmarried Woman?
Not all unmarried women file paternity cases. Sometimes, they will become
pregnant by a married man, by a one-night-stand, or by an abusive man
who they do not want in their child’s life. If an unmarried woman
wishes to seek child support, she must establish paternity first. Likewise,
if a biological father wishes to fight for custody or visitation rights,
he must establish paternity before the court can issue any orders.
Aside from the above, establishing paternity is good for the child; it
opens the door for health insurance, access to medical records, and access
to Social Security benefits on the father’s earning record.
In California, there are two ways to establish paternity: By signing a
Declaration of Paternity or by getting a court order. Usually, the
Declaration of Paternity is signed by both parents at the hospital shortly after the child’s
birth. Generally, if a woman tells a man that he is the father of her
child, he has the right to ask the court for a paternity test. In fact,
if he is not sure that he is the child’s father, he should not sign the
Declaration of Paternity form. Instead, he should request a DNA test to ensure that he is the child’s father.
If you have questions regarding a paternity or child custody case, don’t
contact our firm for a free case evaluation with one of our child custody attorneys.