Mutually choosing to have and co-parent a child as an unmarried couple is a choice many people are happily making.  However, even is cases where a couple agrees to co-parent, paternity may play an important role in ensuring that the actual goal of co-parenting is achieved with ease, respect, and success. Failure to establish paternity could result in a father being denied a right to custody or visitation; or, in the alternative, deny a mother the right to receive child support.

The “Voluntary Declaration of Paternity” in California

Under California law when both unmarried parents sign a “Voluntary Declaration of Paternity” they are declaring that they are the legal parents of the child.  Once a “Voluntary Declaration of Paternity” is signed each parent has an equal responsibility to support the child and an equal right to custody of the child.  A declaration of paternity not only ensures for each parent rights to custody, visitation, and support, but it also protects the rights of the child to obtain benefits through the father including social security, military, or survivors benefits.  However,  a “Voluntary Declaration of Paternity” may be difficult or impossible to reverse, so it is important that it not be signed if there is a dispute over paternity.

The Paternity Lawsuit

If the parents of a child born outside of marriage do not sign a “Voluntary Declaration of Paternity,” or if parentage is in dispute, the parent who wants a confirmation of identity can file a court action. Ultimately, the court can order that all parties – parents and child – submit to a DNA blood test to resolve the issue.

The Complexity of Paternity Cases in California

The Case of Tate v. Wilburn

The California case of Tate v. Wilburn is interesting because it illustrates the far reaching effects of failing to follow certain procedures when challenging a claim of paternity.  In the Tate v. Wilburn case, the California Court of Appeal upheld a decision that ordered a homeless man to pay child support from his inheritance. In the Tate case, Hari Wilburn was named as the father of Cathy Tate’s daughter, Alexis, in a court proceeding during which Wilburn was ordered to pay child support.   Seventeen years later, Cathy Tate asked the Court to take money that Hari Wilburn was going to receive through an inheritance to pay the court ordered child support.  The court granted Cathy Tate’s request despite the fact that DNA test excluded Hari Wilburn as being Alexis’ father and had never established a father child relationship.   The court held that under California Family Code 7551, Wilburn waited too long to challenge the court’s finding of paternity. 

Clearly, the facts of the Tate case are unique.  However, the facts of any paternity case where the parents fail to sign a “Voluntary Declaration of Paternity” can be just as unique and complicated.  It is important to know what your rights are even when both parents of a child are in full agreement about co-parenting outside of marriage.  Also, if you are a parent who wants to establish paternity there are complex steps that need to be undertaken. The experienced family law attorneys at San Diego Law Firm can help you understand your rights and ensure that you and your child are protected legally and financially.  Please call us at (619) 794-0243 for a consultation.

With so much hinging on whether paternity has been established, it’s important to realize that under certain circumstances, California law will automatically presume someone to be the father of a child.  For example, usually, a man is considered the legal father when:

- The child is born during the marriage, or when the child is born within 300 days of the marriage being terminated.

- The man and the child’s mother get married after the child’s birth (or in certain situations if the two attempt to marry).

- Both parents sign a Voluntary Declaration of Paternity, either at the hospital when the baby is born, or afterward.

- The man receives the child into his home, openly holding out the child as his own biological child.

Some of these presumptions can be challenged in court.  If a voluntary declaration of paternity was signed, it may become necessary to seek to have the declaration overturned.  In other situations where paternity is in dispute, either a mother or father can choose to start a legal action and require blood testing, but note that if certain legal presumptions apply, the blood tests can’t be admitted as evidence during the paternity suit.  If someone refuses to submit to the blood test, then the court can resolve paternity against that person.  Paternity law always raises critical questions of child custody and visitation and child support that can be handled as part of the paternity lawsuit.  Our family law attorneys can help ensure that your child will receive the support that he or she is legally entitled to, or help secure your rights as a father.  We’ll take the proper legal actions to establish parentage and seek the best custody and support arrangements possible.  We recognize that the steps you take right now can affect you and your child for years to come, and we’ll work to resolve these issues fairly and properly.  Contact San Diego Law Firm’s family law and paternity lawyers at (619) 794-0243.