Filing a Paternity Action

In a parentage case, the court determines who a child’s legal parents are. With the rise of same sex marriages and domestic partnerships, the issue of parentage has evolved quite a bit. There are several different “levels” of parentage, and with each level comes different rights and responsibilities.

Parentage cases often arise between parties who were never married. Under California law, if two parents were married when a child is born (or in a registered domestic partnership after January 2005), there is a presumption that husband is the father and the wife is the mother. Therefore, paternity is automatically established in most cases. However, for a child born to unmarried parents, technically the child does not have a legal father until paternity is established. (Note that even a man who has already proven through DNA testing that he is the biological parent of a child will still have to establish parentage of that child if he was never married to the other parent.) Establishing paternity is necessary before any custody, visitation, or child support orders will be made by a court.

Establishing Parentage

There are two ways to establish parentage. The first is by having the parents voluntarily sign a Declaration of Paternity. This most commonly happens at the hospital, right after birth. If this Declaration is signed, both parents’ names are printed on the child’s birth certificate and no further court action needs to be taken to prove who are the legal parents.

The other way to establish parentage is to file a parentage action, requesting the court to determine who are the child’s legal parents. To begin filing your parentage action, you will want to make sure you are filing in the correct court. This is called jurisdiction, and means the court has the ability to make binding decisions regarding the parties and the child. The state of California will have jurisdiction if sexual relations in this state resulted in the birth of the child at issue, or if the requesting party has engaged in assisted reproduction within the state. In determining which county within California to file a parentage action, the court will look to the county in which the child is residing or found.

Presumptive Parent Status

A father may request “presumptive parent” status, which means that the court can find a man is the legal father (even if he is not the biological father) if he has always treated the child as his own. Under California law, the courts will find a presumption of parentage when a man “welcomes a child into his home” and “openly acts as if the child was his own.” This concept is also referred to as “parentage by estoppel” and is commonly found in same sex relationships.

The burden is on the requesting parent to show that he received the child into his home, and then held child out as his own. The court will hear evidence on the presumed father’s relationship with the child, such as providing food, shelter, comfort, guidance, education, etc. to the child. Once that is shown by a preponderance of the evidence (it is more likely than not the presumed father did those things), then the burden shifts to the opposing parent to show that he was not in that type of relationship with the child. The opposing parent must prove this with clear and convincing evidence, which is a much higher standard to meet.

Once a person is established as the parent of a child, he will have all the rights and responsibilities of a parent. This includes the right to request custody and visitation orders from the court. This also includes responsibilities like paying for child support, health-care and daycare costs for the child. There are also benefits to the child in determining parentage. First, the child gets the important emotional and psychological benefit of knowing whom both of his or her parents are. Legally, the child will also have the right to financial support from both parents, access to family medical records, the right inherit from either parent, and to receive social security or veteran’s benefits if available to the parent.

If you have questions about your role in a child’s life, or would like advice on filing a paternity action, contact an attorney at Cage & Miles, LLP today.

Categories: