Parentage Litigation (Paternity)

Parentage litigation is resolved in the family law courts. This area of the law is decided based on statutes, case law and a number of very significant presumptions. The laws are designed to protect the best interests of the child and follow common sense.
Paternity cases may also involve custody issues and child support which are determined under the same body of law that controls these issues in a divorce.

California laws relative to paternity are based on the Uniform Parentage Act (UPA) which was adopted in 1975, but is not limited to the provisions of the UPA.

Paternity laws are based, in part, on presumptions. It is conclusively presumed that the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. This presumption may be applied against a man who is the biological father of the child. A divorce or separation does not impact this conclusive presumption. The presumption will be applied unless it would result in a bizarre and 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 biological father.

Parentage Litigation (Paternity)
Infographic - Parentage Litigation (Paternity)

Determination of Paternity

Statutorily 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 (POP). The declaration has the same force and effect as a Judgment of Paternity.

Unless the POP is set aside, it prevails over the conclusive presumption.

Infographic - Determination of Paternity

Set Asides

Infographic - Set Asides

A voluntary declaration may be nullified in one of the following ways:

  • Filing for a rescission (F.C. § 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 (F.C. § 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 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 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 (F.C. § 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

Rebuttable Presumption

A voluntary declaration is invalid if:

  1. The man signing the declaration was a semen donor (Family Code section 7613(b)); or
  2. The child had a presumed parent at the time

The Family Code section 7611 rebuttable presumption of paternity is established if:

  1. The child is born during the marriage of the mother and the presumed father or within 300 days after the termination of the marriage by death, annulment, declaration of invalidity, divorce or judgment of separation. There are additional provisions relative to establishing the presumption related to attempted marriages that are or may be invalid (Family Code sections 7611(b), 7611(c); or
  2. The presumed parent receives the child into his home and openly holds the child out as his own.

This rebuttable presumption may be rebutted by clear and convincing evidence that shows that the presumption is inapplicable or by a judgment establishing that another man is the biological father of the child. Note that a valid P.O.P. prevails over presumed father status.

The doctrine of equitable estoppel (a bar to a party from asserting a legal claim or defense that is contrary or inconsistent with his or her prior action or conduct) may apply in parentage actions to establish an obligation to pay child support. This doctrine could apply if the alleged father knows that he is not the biological father of a child but represents to the child the he is the father, the child relied upon the father’s actions by accepting and treating the man as his natural father, the child is ignorant of the true facts and the representation was of such long duration that it frustrated the opportunity to discover the identity of the natural father. This doctrine would not apply if the alleged father believed he was the child’s biological father.