Parentage Actions

Public policy in the state of California favors identifying 2 (or sometimes more) legal parents for every child living in the state. In California, if two parents are married when a child is born, the law assumes that the husband is the father, and the wife is the mother. Similarly, both parents are assumed to be legally responsible for the child if both parents are registered domestic partners. In these cases, marriage (or domestic partnership) establishes paternity.

But what happens if you aren’t married? If a child’s parents aren’t married, the child doesn’t have a legal father until the parents formally establish parentage. Even if a father proves via genetic testing that the child is his, he doesn’t legally have any responsibilities or rights for the child until the courts establish parentage.

Why Would You Need to Establish Parentage?

If you are the father of the child, establishing parentage is important because without doing so, you cannot have legal parental rights without being recognized as the child’s legal parent. Therefore, you are not entitled to any custody or visitation with the child. If you are the child’s mother, without establishing parentage, the child’s father cannot be held responsible by the courts for upholding their legally required duties as a parent, such as their duty to provide financial support for the child.

There are many important reasons for establishing legal parentage, but the primary one is that it is beneficial to the child. When both of a child’s parents are legally recognized, the child can enjoy greater stability and support that they otherwise would not have had access to. In California, parents are legally required to support their children. However, a parent cannot be held lawfully responsible unless their parentage is established with the courts.

It is necessary to establish paternity in order for a court to make orders as to the following:

• Child Support

• Physical and Legal Custody of The Child

• Visitation

• Health Insurance for the Child

• Payment of Reasonable Expenses for Pregnancy and Birth

• Payment of Either Party’s Reasonable Attorney’s Fees

Establishing parentage can also increase a child’s access to not only financial support, but other resources such as life insurance, rightful inheritances, social security benefits, and veteran benefits.

How Can You Establish Parentage?

Voluntary Declaration of Paternity: The simplest way to establish paternity is to sign a Voluntary Declaration of Paternity. Both parents of a child must agree to sign this form, usually when an unmarried woman gives birth. By signing the form, both parents acknowledge they are the legal parents of the child. The father can then add his name to the child’s birth certificate. In California, signing a voluntary declaration of paternity is the only way that an unmarried father’s name can be listed on a child’s birth certificate.

Paternity Action in Court: Another way to establish parentage is by obtaining a Court order. Under California law, the child’s mother, a man who believes he’s the father of a child, a local child support agency, an adoption agency, or the child him or herself if over the age of 12, can ask the court for an order on paternity.

The court has the authority to order genetic testing to determine the biological father of a child in cases of contested paternity. Assisted reproduction technology and same-sex marriages and domestic relationships can also give rise to complicated legal questions relating to a particular child’s parentage, requiring a Court order to determine parentage.

Presumed Parentage: In some cases, the Court will determine someone is legally a child’s parent, even if they are not biologically related. The courts can find that a man is the legal father of a child even if he’s not the child’s biological father based on the concept of “parentage by estoppel.”

If the man has lived with a child and mother and demonstrated a commitment to the child, the courts will presume the man is the child’s father regardless of the results of a paternity test. This means the father has expressed a willingness to take care of the child emotionally, financially, and otherwise.

This typically occurs when a child develops a parental attachment to a parent due to being raised as if the child were the biological child of the parent, and the parent has “held the child out” as his own. A father the court determines is a presumed parents receives all legal rights and responsibilities for the child. In these cases, a mother also would not need a genetic paternity test to make the man responsible for child support.

Can I Sign Away My Parental Rights?

Under most circumstances, the answer is no. Unless your child is the subject of an adoption, and another parent is willing and able to step into your place as a legal parent to your child, you cannot sign away your parental rights. You can relinquish custody to another parent or a legal guardian -- but you are still legally responsible for that child in many important respects, such as the payment of child support.

If you are considering whether you can waive your parental rights, relinquish custody of your child, or need to establish paternity you should meet with an experienced family law attorney.

For more information about co-parenting in your military divorce, check out our website: www.frfamilylaw.com or call (858) 720-8250 and ask to speak with military family law attorney Tana Landau.

This article is intended only for informational purposes and should not be taken as legal advice.

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