When a party initiates a “paternity case”, which is synonymous with a “parentage case”, the Court is tasked with issuing an order determining the “legal parents” of a child. As we will discuss below, this is not always the biological parents of the child. A Court order stating that an individual is a “legal parent” of a child has far reaching implications. While this is hardly an exhaustive list, the “legal parent” of a child is obligated to provide financial support for their child, they can provide their child with life insurance or health insurance, their child gains the right to inherit, and the “legal parent” is able to access their child’s medical records and history.
The simplest situation arises when a child is born to a couple during their marriage, in this case parentage is usually not an issue. There is a “conclusive presumption” that a child born to a couple during marriage is the child of both spouses; this “conclusive presumption” operates to establish parentage as a matter of law in most cases. A few examples of when the “conclusive presumption” applies include:
- At the time the child was conceived or born, the father was married to the child’s mother;
- At the time the child was conceived or born, the father had attempted to marry the child’s mother, but the marriage was invalid for some legal deficiency;
- After the child was born, the father married the child’s mother and either
- Agreed to have his name on the child’s birth-certificate; or
- Agreed to support the child
- After the child was born, the father openly treated the child as his own; this is referred to as “parentage by estoppel.”
The situation becomes more complicated when a child is born to an unmarried couple. In the case of children born out of wedlock, the Court will need to issue an Order determining the “legal parents” of the child.
The most complicated situation arises where a child is born to a marriage, but the spouse is not the biological parent of that child; that is beyond the scope of this article. This article will briefly discuss the law & implications surrounding being a “legal parent.”
What Does it Mean to “Establish Parentage”?
There are two avenues of establishing parentage: (1) A party may seek an order from the Court stating who the “legal parents” are, or (2) the parties may sign a “declaration of Paternity”, which states which individuals are the “legal parents” of a child. The most common situation that arises is where a child was born to a couple out of wedlock.
Example: Fred Father is not married to Monica Mother when Dayna Daughter is born. At this point in time, Dayna’s “legal parent” is Monica. This remains true even if Fred can prove he is Dayna’s biological father. At this point, Fred cannot provide Dayna with the family-benefits he may have earned through his employment, while Monica can. Fred will not have any legal rights or responsibilities relating to Dayna until he has “established parentage.”
Taking the example above a step further, let’s assume Fred and Monica had a less-than-friendly breakup, and Monica does not want Fred to be involved in Dayna’s life. Without establishing parentage, Fred has no claim to custody, visitation, or child support. The Court must first establish parentage (note that Fred can request an order for child support, custody, and/or visitation as part of claim to establish parentage). A party seeking to establish the parentage of an individual who is unwilling to admit that they are the parent of a child can seek, and obtain, a Court order requiring the alleged mother, father, and child to submit to genetic testing.
Once the “legal parents” have been established, they have all the legal responsibilities and rights associated with being a parent. This includes, but is not limited to:
- The right to request visitation (also referred to as “parenting time”) orders so that they may legally visit their child;
- The right to request custody orders;
- The obligation to pay child support;
- The obligation to pay ½ of the health-care (uninsured health-care) costs of the child; and
- The obligation to pay ½ of the child-care costs of a child, provided those costs were incurred as a result of the parent who has custody going to work or school.
It bears emphasizing that if you are the “legal parent” of a child, you are legally obligated to support that child. It is a punishable offense to fail to support your child and may have a significant impact on other aspects of your life (i.e., obtaining a passport).
Why Should I “Establish Parentage”?
Having identified parents is important for a child’s psychological well-being, among other things. In addition to the psychological benefit to the child, “establishing parentage” entitles the child to privileges and rights, including:
- The right to receive financial support from two (2) parents;
- Legal documentation, which identifies the child’s parents;
- Health insurance coverage from either parent;
- Life insurance coverage from either parent; and
- The legal right to inheritance from both parents
In addition to the benefits to the child mentioned above, “establishing parentage” allows the Court to make numerous Orders benefitting one or both “legal parents.” These orders include the ability to obtain reimbursement for birth and pregnancy expenses.
It is an unfortunate reality, but sometimes people do not want to pay support for their children, without “establishing parentage” the Courts simply do not have the authority to force them to make payments. To answer the question posed above, “Why should I establish parentage?” the answer is “to protect yourself, and to protect your child.”
How Do I Establish Parentage?
For purposes of this article, there are two (2) methods of “establishing parentage” when the “conclusive presumption” discussed above do not apply:
- Obtaining a Court Order; or
- Signing a Voluntary Declaration of Paternity
The Voluntary Declaration of Paternity is an official California form, which establishes the signing parties as the child’s “legal parent.” This form follows general contract law, in that the signature must be voluntary; that means defenses such as duress, fraud, and mistake could theoretically undo the effect of a Voluntary Declaration of Paternity. The purpose of the Voluntary Declaration of Paternity is to legally establish the identity of a child’s parents, including the rights and obligations associated with being a parent, when the parents of the child are unmarried. A properly executed Voluntary Declaration of Paternity has the same legal effect as an order from the Court “establishing parentage”; the benefit of taking this route is avoiding Court and the costs associated with going to Court.
How Do I Dispute Parentage and Genetic Testing?
Unfortunately, it has become increasingly common for the mother of a child to tell a man that he is the father of that child, even if it is unclear whether that is the case. There are an infinite number of reasons a mother might do this, ranging from the benign (the mother honestly believes the man is the father of the child) to the fraudulent (the mother knows the man is not the father, but believes the child’s life will be better if the man is obligated to support them). The attorneys at Maples Family Law believe that more often than not, this is an honest mistake.
When the male who has been informed that he is a father has doubts that he is the father, they have the right to request genetic testing to discern whether that is the case. Deoxyribonucleic acid (“DNA”) is a chain of nucleotides, which carry the genetic information to determine the development, growth, functioning, and reproduction of all living organisms on earth; they are also unique to each human being. A child receives DNA from both their biological mother, as well as their biological father. A DNA test requires a DNA sample from the mother, the alleged father, and the child. Many people believe the DNA test requires blood, however since saliva also contains an individual’s DNA, a simple cotton swab (a Q-tip for example) is sufficient to conduct the test; however, this test must be conducted at an approved location (you cannot take the DNA sample on your own, and rely on that sample to prove, or disprove, parentage).
If the parties utilize the Department of Child Support Services (“DCSS”) to perform the DNA test, there is generally no fee for either of the parents.
Here at Maples Family Law, we understand that “establishing parentage” is incredibly important for several reasons. It is important to your child to know who their parents are and receive the support that they are legally entitled to, which will provide them the best opportunities to grow up to be a successful and productive member of society. For the mother “establishing parentage” is important to obtain support in the undeniably expensive task of raising a child. For the father, “establishing parentage” is important either to obtain support for raising a child, or to obtain the rights associated with a parent so they can take an active role in their child’s development. Regardless of why “establishing parentage” is important to you, the attorneys at Maples Family Law are ready, willing, and able to assist you in pursuing your goals.