What You Need to Know About Paternity

Paternity Tests in California

To establish 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.

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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.

In this case, the mother's boyfriend has the right to ask the courts for a paternity test. He will only have two years from the child's birth. Otherwise, if he misses this window, then the husband will be considered the legal father. The father will also lose his parental rights to the child.

Husbands who question paternity have two years from the date of discovery to investigate further. A blood test, for example, may be ordered by the courts.

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 California Courts.

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 voluntary 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.

Have you questions regarding a paternity case? Contact our firm for a free case evaluation with one of our attorneys.