Family Law Specialists

Steve Fernandez and Mark Karney are both Certified Family Law Specialists* with over 50 years of combined experience.

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Los Angeles Paternity Lawyer

Paternity issues extend well beyond a single blood test.  For one, not just any test  is acceptable as conclusive or admissible as evidence  in court.  There may be a “mobile DNA testing facility” with fees as low as $299 roaming New York City, but a California judge would likely question the accuracy of the Winnebago’s offering. An expectation is that the laboratories performing genetic tests be court approved, or accredited  with California agencies designated by the US Department of Health and Human Services.

Paternity suits have quite the potential for complexity. Normally, the alleged father can rely on his constitutional rights, which include an opportunity to present his case on paternity issues in court. But in California, by signing a voluntary paternity declaration,  usually at the time of the child’s birth, the self-designated father effectively waives these rights. So paternity law potentially implicates constitutional due process issues.

The paternity declaration can be validly rescinded within 60 days  of placing the signature on the page. The court may even set it aside  at a much later point, if confronted with the results of genetic testing. However, it is worth noting, the law requires that the judges look at a multitude of factors before making a decision. When considering what to disregard – the paternity declaration or the results of the genetic testing – the courts take into account the interest of the child, or, among other things, the possibility of a relationship between the child and its biological father.

The Paternity Presumption

In California, if a husband lives with his wife, a rebuttable presumption  exists that he is the father  of her children, unless he is impotent or sterile. Specifically, under the Uniform Parentage Act, paternity is presumed if the child is born within 300 days of termination of marriage, attempted marriage, or cohabitation.

The Act contemplates other scenarios that trigger the presumption in favor of paternity.  For example, if the alleged father marries the mother  after the child’s birth, and consents to be named on the child’s birth certificate, he is presumed to be the biological parent.

The voluntary paternity declaration has a stronger force – and a bigger impact – than mere presumption: If valid, it has the effect of a judgment. This means that it serves as basis for court orders  regarding child support and child custody, unless successfully disputed. However, when we speak about “voluntary paternity declaration” within the meaning of the law, this is more than a mere statement.

California Family Code requires among other things, that the declaration of paternity be in writing, signed by the parents, and witnessed by the hospital staff or notarized. An acceptable declaration of paternity is made on a form, provided by Child Support Services.  This is not to say that actions and statements of the parent or alleged parent are disregarded. Assertions of the alleged father certainly play a role in establishing the parenthood presumption in the absence of a written declaration. Yet California statute requires not only that the presumed father “holds out the child as his” to others, but that he also welcomes the child into his home.

Blood tests  can be used to challenge the paternity presumption, but a statute of limitations applies. However, there are situations when a blood test is not an option: For instance, if the child was artificially conceived, and the father gave consent, he cannot later use a blood test to argue he is not the father.

Paternity Action

Because paternity determination may have far reaching implications, for instance respecting inheritance, the law aims to place limits on who, how, and when can bring an action to court to get such parenthood declaration.

In California, the law only allows specific persons to bring a lawsuit to establish (or to question) a parent-child relationship. Where a presumption in favor of fatherhood exists, for example, when the child was born during marriage, the action for declaration of fatherhood can be initiated

(1)          by the child itself,

(2)          by an adoption agency, or

(3)          by a prospective adoptive parent at any time.

The ability to sue is called “standing.”

Child Support Services can also initiate a paternity suit. Generally, if an individual or a public institution furnished expenses relating to pregnancy, confinement, education, support, or funeral of the child, they can also seek to enforce parental obligations directly in the proceeding for the determination of the paternity. The law gives the power to sue to interested parties, which can also include parties to an assisted reproduction agreement.

When it comes to the timing, a paternity lawsuit can be filed, even before the child is born. The man declared as father in an official judgment has only two years to ask such judgment be vacated. The two-year statute of limitations starts running at the time when the notice of the paternity is served  on the alleged father. After this period ends, even if genetic testing disproves paternity,  the court decision will stand. Further, if the judgment was made in a different state, California courts have to give it full faith  and enforce it.

What gives California courts the jurisdiction to decide paternity suits is the act of conception, whether natural or artificial, within the territory of the state. Off course, the courts have other basis for jurisdiction, but this particular rationale underscores the intimate nature of information discussed during paternity proceedings. Thankfully, the proceedings may be held in closed court.