If parents are married when a child is born, there is usually no question about parentage. There is a legal presumption that the husband is the father and the wife is the mother, automatically establishing paternity in most cases, with various exceptions pursuant to Family Code and case law.
Today in California, there is no typical family structure. Many of our children are going to school with children who have 3 parents, one parent, same-sex partners, biological parents, statutorily presumed mothers or fathers, and constitutionally presumed fathers or mothers. Defining family structure and rights of parents, whether presumed biological, presumed statutorily, or presumed constitutionally can be complicated, as it was in the case of Kelsey S. (1992).
Effective after January 1, 2005, if parents are registered domestic partners when a child is born, the law assumes that the domestic partners are the child’s parents. However, since this law is relatively new, same-sex parents should get legal advice to make sure that the parentage is clear and resolve any ambiguity to avoid future problems, and possible heartaches.
It is important to establish your parental relationship in order to establish your rights to the child(ren). In California, we rely on the Uniform Parentage Act (California Family Code §§ 7600-7730) to distinguish between “alleged”, “biological”, and “presumed” parents.
For unmarried parents, the presumption of paternity does not apply and parents must legally establish parentage of their children. The Uniform Parentage Act governs paternity proceedings. A paternity proceeding may typically be commenced any time after the child’s birth or at any time for the purpose of declaring the existence of the father and child relationship, such as in
- visitation, and
- child support matters.
Parties may contest paternity by requesting that the Court order DNA testing to determine paternity, within the time allotted by law for such contests under common law and case law.
At times, a party may request genetic testing to determine paternity. A party to a paternity action could ask for a DNA Test, or the Court could order genetic testing on its own motion, when there is ambiguity.
Once a person is determined to be the parent of a child, it is difficult to undo the order, not to mention child support orders that follow. This will or could make the matter more complicated, as it is the policy of “public interest” that the Court not upset paternity established, even at times when it was established erroneously.
That said, there is no absolute rule. The Court reviews each case based on its facts. It is crucial to contact an experienced Family Law Attorney immediately, once you are notified of a paternity action.
At Nouri Law, we argue case law and statute to advocate on your behalf. We are aware of the importance of the parental connection, and of love and affection. However, we also understand that determination of paternity, possibly based on fraud and misrepresentation, is unfair. Again, there are limitations with setting aside a prior order of paternity, but it can be done if relevant facts and the law support such an action.
Our staff of skilled and experienced Family Law professionals will be happy to assist you. We have helped numerous clients obtain a successful resolution of their cases, when contesting or establishing paternity.