How Paternity is Established

In a California paternity case, the court makes an order establishing who child's legal father is. When a child's parents are married when he or she is born, the law automatically assumes that the husband is the child's legal father, but if the parents are not married at the child's birth, that is another story.

When a child is born out of wedlock, then "paternity" needs to be established and there are a few ways that this is legally done. To establish paternity, one of the following has to occur:

  • The biological parents voluntarily sign an official Declaration of Paternity, or
  • After a DNA test, the court issues an order stating who a child's legal father is.

In today's society, it is not uncommon for couples to have children while unmarried. However, if a child is born and his or her parents are not married, in the eyes of the law the child does not have a legal father until paternity is established, even if the biological father knows he is the child's father.

So, even if a man is confident he is a child's biological father, if he was not married to the child's mother at birth, then he has zero rights or responsibilities towards his child. In order for him to obtain child custody rights, or for the court to order child support, paternity must be established first.

Establishing paternity is necessary for:

  • Child support
  • Child custody and visitation
  • The father to pay toward health insurance
  • Inheritance rights from the father
  • The father to pay towards childcare
  • The father to contribute to pregnancy and birth-related expenses
  • The child to receive Social Security or veteran's benefits (where applicable)

Note to mothers and presumed fathers: Once paternity has been established by the court, the legal father will automatically have all of the same rights and responsibilities toward his child as a married father and a biological mother.

This means that the legal father will HAVE TO financially support his child, but at the same time he will have the right to seek custody and visitation.

What if the father disputes paternity?

Sometimes a man is told that he is a father of a child, but he is not completely sure that he is the child's father. In this situation, he has every right to request a paternity test (DNA) to ensure that he is in fact the father of the child.

DNA tests are simple, painless tests. Samples are collected by using a cotton swab that resembles a Q-tip. The sterile swab is gently rubbed inside the mouth to collect a saliva sample, and the DNA is compared to the child's DNA.

To learn more about establishing paternity and your rights under California law, don't hesitate to contact the San Diego family law attorneys at Claery & Hammond, LLP.