At Wilkinson & Finkbeiner, we are proud to serve Orange County and the surrounding areas for all matters concerning divorce, annulments, child custody and visitation, spousal support, child support, and paternity cases, which is the focus of this page. As one of our areas of expertise, we represent both mothers and fathers in their pursuit of establishing paternity, child custody, child support, visitation, and name changes. Our partners are Certified Family Law Specialists and all of our attorneys have years and years of experience.
Attorney Brian Mullen, the managing attorney for our Irvine office, has litigated countless paternity suit cases successfully, which almost always include establishing paternity, custody and visitation, and support. He often receives referrals from other attorneys in the attorney for cases that are too difficult for them that Brian has handled in the past, including international move away cases stemming from paternity suits. While something as simple as paternity may seem straightforward, it often involves complex and unique circumstances that require legal intervention. Simply having your name on a birth certificate does not determine whether you are a legal parent of the child in question.
What is an Orange County Paternity Action?
A paternity action is filed in the Orange County family courts by a parent whose child was born when both parents were not married. The effect of establishing parentage is that a parent-child relationship exists and once a parent is determined to be the legal parent of a child, that parent has the right to request child custody and visitation orders as well as seek (or pay) child support related to the child.
Believe it or not, simply having a name on the child’s birth certificate does not establish the father as the “legal parent” of a child.
How is a Parent-Child Relationship Established Under the Law?
There are numerous ways to establish a parent-child relationship.
First, if the parents are married to each other and living together at the time of the child’s birth, the child is conclusively a child of that marriage (Fam. Code §7540). Under this scenario, there is no need for a paternity action. Thus, the remainder of this article focuses on unmarried parents.
Second, a parent-child relationship is established if the unwed father signs a voluntary declaration of paternity at the hospital at the time the child is born (Fam. Code §7573).
Third, a parent-child relationship can be established through genetic testing (Family Code §7551) et. seq.
Fourth, a parent-child relationship can be established through “parentage by estoppel.”
Finally, a parent-child relationship can be established through contract by assisted reproduction. This area of law is extremely complicated and you should consult with an attorney if interested in learning more about these issues.
Reasons For Establishing Parentage:
Establishing parentage in Orange County, including Irvine and Newport Beach, provides a number of legal rights and privileges to a child. These include:
- Full financial support from both parents.
- Access to complete family history and medical records.
- The right to inherit from both sides of the family.
- Legal documentation proving and identifying both parents.
- A complete birth certificate with the names of each parent.
- Life insurance/health insurance coverage from either parent.
- The ability to receive social security or veteran’s benefits.
- Peace of mind.
What is a Voluntary Declaration of Paternity:
If you and the other parent are unmarried at the time of the birth of the child, you can establish parentage by executing a voluntary declaration of paternity at the hospital. This form contains the name and signature of the mother as well as the father, the date of birth of the child, a statement by the mother and father that they understand by signing this form they: waive certain rights (i.e. genetic testing), admit they are the biological parents of the child and they consent to the establishment of paternity by simply signing such form (Fam. Code §7574). This form then needs to be filed with the Orange County Dept. of Child Support Services Paternity Opportunity Program (“POP”).
A voluntary declaration of paternity can be rescinded (i.e. revoked) but there are strict rules related to the timing of the rescission (i.e. 60 days from executing the form) and the Dept. of Child Support Services will be involved related to the case (Fam. Code §7575). It is highly recommended you seek the expertise of an attorney prior to attempting to rescind this declaration of paternity.
How Does a Genetic Test or Paternity Test Work:
If it is alleged that you are the biological parent of a child that was born during a time when the parents were not married, then if a parentage action is filed, you can request a paternity test (Fam. Code §7551, and Fam. Code §7635.5). This order can be obtained through a request in the family court or through Family Support Division if the Orange County DCSS is involved.
The test will be conducted by an expert. The testing center will take an oral swab of the mother, alleged father, as well as the child. The oral cotton swab is non-invasive and there is no blood drawn for the test. The results are sent to a lab to analyze the genetic markers and the results will be in the form of a number on the paternity index. There is a rebuttable presumption that the alleged father is the biological father of the child if the genetic test results in a score of 100 or greater on the paternity index (Fam. Code § 7555).
What is Parentage By Estoppel:
Even if an alleged father is not the biological father of a child, the Court can still enter an order that the alleged father is the legal parent through what is called Parentage By Estoppel. The Court’s analysis in these types of cases is fact driven and includes whether the alleged father received the child into his home, held the child out as his biological child, as well as other factors. In the event you are faced with a parentage by estoppel case, it is highly recommended you hire an attorney to represent you because they cases usually go to trial and the facts and circumstances related to raising the child will determine the outcome.
What is the Procedure To File A Paternity Action:
A paternity suit starts with the filing of a Petition to Establish Parental Relationship (form FL-200 in California), which consists with the petition requirements set forth in California Family Code 7630. You can also file a case with the Orange County Dept. of Child Support Services.
Either the mother or the alleged father can file the Petition, and it does not matter how old the child is when the Petition is filed. The Petition can actually be filed before the child is even born, and anytime until the child becomes emancipated.
Along with the Petition, or anytime after the Petition is filed, either party may file a motion for certain orders, which may include a request for a paternity DNA test, child custody, visitation, or support. The trial courts also have the ability to order each parent contribute to the costs associated with childbirth.
Once the Petition to Establish Parental Relationship is filed, it must be served on the Respondent in order to provide that person with notice and an opportunity to be heard. The Respondent has 30 days to file a response, or answer in the case. If the parties do not stipulate (i.e. agree) or orders for custody, whether the father is actually the legal father, support or other issues, the court will set a trial and finalize the case. However, parents can be under the guidance of the court for issues like custody and support until the child becomes an adult.
Can I file for Child Custody or Parenting Plan Orders in a Paternity Suit?
Yes, you can file for child custody orders, which may include visitation or a parenting plan. There are several times when the court might make child custody orders. If you want custody orders right away, whether you are the mother or father of the child, you have the option of filing a Request for Order with the court, which sets a hearing date on the issue of child custody and visitation. (You should review our guide to Request for Orders (RFOs) if you plan on filing one). The RFO can be filed concurrently with the Petition to Establish or anytime after the initial Petition is filed.
For more information about child custody, visit our complete custody guide.
Can the Court Order a parent to pay child support in a Paternity Suit?
Yes. Upon request of either party, the family court has the ability to order one parent to pay child support to other. This may include “add ons” to child support such as childcare expenses and unreimbursed healthcare expenses.
For more information about child support in paternity cases, visit our child support guide.
What if two or more men claim they are a child’s father?
Occasionally we encounter cases where two fathers, usually the biological father and the mother’s current boyfriend, are competing to obtain paternity rights. This article will examine the legal rights available to each in a paternity action.
Let’s assume the following hypothetical for the sake of this discussion: Mother and Boyfriend 1 have intercourse approximately nine (9) months prior to birth of Child. When Mother learns that she is pregnant she tells Boyfriend 1 about the baby. Boyfriend 1 shows no interest in the pregnancy and bails. A few months after the conception Mother and Boyfriend 2 begin dating and move in together. During the pregnancy, Boyfriend 2 rubs Mother’s feet, brings her ice cream and pickles and paints the nursery. Boyfriend 2 is present for the birth of the child, signs a Declaration of Paternity at the hospital, agrees for his name to be on the birth certificate, and holds the child out as his own son for a year. A year later Boyfriend 1 decides he is interested in establishing a relationship with Child and files a paternity action seeking visitation rights. What legal rights do Boyfriend 1 and 2 have to Child?
Boyfriend 1
Boyfriend 1 may file a request for genetic testing to determine if he is the biological father of the child. Family Code §7630 and §7551 provide a means to request genetic testing, which is allowed so long as the petitioner can show that the issue of paternity is relevant to the case.
Family Code §7630 provides the law that allows for the establishment of paternity. Only the biological mother or person presumed to be a child’s father may file a petition. Section 7551 allows the court to order genetic testing.
Boyfriend 1 will have difficulty convincing the Court to order genetic testing under FC §7630 because he cannot meet the standard of a presumed parent. In most cases presumed parents will fall into one of two categories. The first is where the father marries the mother, and the child is born during the marriage or within 300 days after the marriage is terminated. The second is where the father receives the child into his home and openly holds out the child as his natural child. Because Boyfriend 1 never married Mother and never held out Child as his own, he may not have standing to request genetic testing under FC §7630.
However, under Fam. Code § 7551, Boyfriend 1 has a much better chance to receive orders for genetic testing because all he needs to prove is that paternity is a relevant fact in the case. Because Boyfriend 1 and Mother had intercourse about nine months before Child’s birth, paternity is a relevant issue. Also, the Court can use genetic tests to rebut the presumption of paternity under Family Code §7611. If the tests come back positive, the Court has the option of setting-aside Boyfriend 2’s voluntary declaration of paternity. Thus, the Court will likely grant Boyfriend 1’s request.
Boyfriend 2
Boyfriend 2 will oppose Boyfriend 1’s request for genetic testing. He will argue that Boyfriend 1 lacks standing to request the testing because his not a presumed parent. Further, Boyfriend 2 will argue that he meets the standard of presumed parent. In order to make his voice matter, Boyfriend 2 will immediately file a Request for Joinder as a party to the case because only Boyfriend 1 and Mother are named parties to the paternity action. The Court should grant Boyfriend 2’s joinder motion because he is a necessary party to the proceeding in that he has signed a voluntary declaration of paternity. Furthermore, he may qualify as a presumed parent, as he has received Child into his home and openly held himself out as the father.
Let’s assume the Court grants Boyfriend 1’s request for genetic testing.
Paternity Test Come Back Negative
Boyfriend 1 has no legal rights to Child. Boyfriend 2 should be recognized as the father of Child.
Paternity Test Comes Back Positive
At a trial the Court will then determine paternity of Child. Family Code 7612 (c) allows the court to find that more than two people are a child’s parents.
Pursuant to the statute, the Court will analyze whether it is detrimental to Child to recognize more than two parents. The analysis will center on harm to the Child if Child is removed from a stable relationship with a parent, who has provided for Child for a substantial period of time. The court’s decision may come down to its definition of “a substantial period of time.”
This area of the law is complex. For that reason, interested parties should retain competent counsel as soon as they become aware of their involvement in a pending paternity action.
Whether you live in Tustin, Laguna Niguel, Laguna Hills or any other part of Orange County it is extremely important that you discuss your Paternity case with an attorney like Wilkinson & Finkbeiner, LLP. All paternity cases involve child custody, visitation, support, and possibly attorney’s fees. The impact of the orders related to your child is long lasting and impacts your daily life. The attorney’s at Wilkinson & Finkbeiner, LLP have litigated hundreds of paternity actions and are experts in the area of family law. We are here to help you navigate this very important process and look forward to working with you. Click here to contact us now.