Paternity

Family law courts determine parentage. Family law courts may determine the identity of the parents of a child using genetic testing. Once parentage is established, a person has all the rights of a parent, may obtain child custody/visitation orders, and may be ordered to pay child support.

Parentage law is decided based on statutes, case law and a number of very significant presumptions that are designed to protect the best interests of the child.

Paternity cases are heard in the family law court and often involve child custody and child support issues. The same law that controls these issues is in a divorce applies.  The laws relative to paternity are based on the Uniform Parentage Act that was adopted in 1975.

Some of the presumptions are conclusive.  It is conclusively presumed that the child of a wife cohabiting with her husband, who is not impotent or sterile, is a child of the marriage. This presumption may be applied by a family law court against an unmarried man who is the biological father of the child. A divorce does not impact this conclusive presumption. The presumption will be applied unless it would result in an illogical outcome. The presumption will not be applied against the biological father in favor of the presumed father where there was no relationship between the child and the man married to the child's mother.

Determination of Paternity

Designated persons have two years from the date of birth to attempt to rebut the conclusive presumption with genetic testing. The defined parties include:

  • The husband;
  • The presumed father;
  • The child through a guardian Ad Litem; and
  • The mother of the biological father has filed an affidavit acknowledging parentage of the child.

Parentage may be established by a father executing an approved voluntary declaration acknowledging parentage. This is also known as the Paternity Opportunity Program (P.O.P.). The declaration has the same force and effect as a Judgment of Paternity.

Unless the P.O.P. is set aside by a family law court, it prevails over the conclusive presumption.

A voluntary declaration may be nullified by a family law court in one of the following ways:

  • Filing for a rescission (Family Code § 7575) with the Department of Child Support Services within 60 days of the execution of the form (unless a custody or child support had made in the interim)
  • Within the first two years of a child’s life, a motion for genetic blood testing is filed (Family Code § 7575(b)) by the Department of Child Support Services, the mother or the person who filed the declaration of paternity. If it is determined that a biological father-child relationship does not exist, the family law court may set aside the voluntary declaration unless the court determines that the set aside is not in a child’s best interests taking the following factors into consideration:
    • Child’s Age
    • Length of time since signature of voluntary declaration
    • Relationship between child and signer of declaration
    • Whether the signer of the voluntary declaration has requested the parent child relationship continue
    • Whether the biological father has indicated that he does not oppose the relationship
    • Whether it would be beneficial or detrimental to establish a biological relationship
    • Whether the signature of the voluntary declaration has made it more difficult to find or obtain support from the biological father
    • Or other relevant factors

Parentage can also be determined in an action to determine child custody or child support and it can be determined in a motion for genetic tests per Family Code Section 7630.

A voluntary declaration can be set aside by a family law court per Code of Civil Procedure Section 473 (mistake, excusable project, or in advertence) per Family Code Section 7575(c).

A voluntary declaration may be set aside in a family law court by a motion filed by the presumed parent, under Family Code Section 7612 within two years of execution. The family law court will take into consideration the following factors in determining whether to set aside the voluntary declaration:

  • Validity of the voluntary declaration
  • Best interest of the child (Family Code § 7575(b))
  • Best interest of the child based on the child’s relationship with the presumed parent and the benefit or detriment of continuing that relationship
  • If conflicts exist between a voluntary declaration and Family Code Section 7611, the court will look to logic and policy considerations