Filing a parentage action is necessary to establish the “legal” father of a child under the California Family Code, which is specifically called the “Uniform Parentage Act” in California (see Family Code Sec. 7600).  Paternity cases are started by the filing of a Petition to Establish a Parental Relationshipand a form called the Declaration under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) with the appropriate courthouse location within San Diego County.

It is a common myth that only fathers can file a petition to establish paternity.  Mothers often file parentage actions for various reasons, including wanting to establish the legal father of a child for inheritance purposes, filing a request for child support (this can also be done through the Family Support Division also) and most importantly, to establish child custody and visitation orders.

How do i establish a parental relationship between a mother or father and a child?

Simply having your name on a child’s birth certificate does not mean you are the legal parent in the eyes of the court.  There are several ways to establish your rights as a parent in the eyes of the court.

If a child is born to parents who are unmarried, or if there is a question as to who is the father of the child born to an unmarried woman, the only way for a parent to establish and enforce their legal right as a parent is to file a paternity action in family court.  This is true even if a parent executed a voluntary declaration of paternity at the hospital.

What is a paternity action?

Paternity suits can arise when there is uncertainty or a disagreement regarding the identity of a child’s father. Often, parents will use a paternity action to establish a man’s legal obligation to provide for his child.  A paternity case can be initiated by either the mother or father by filing a Petition to Establish Parental Relationship. The Family Court has jurisdiction (the ability) to hear and enter orders and judgments on all issues related to the parent-child relationship.  A child support case can also be filed by the Department of Child Support Services (DCSS) at Family Support Division (FSD), another division that hears issues regarding finances and custody of children.

In some cases, a man will use a paternity action to establish fatherhood for the purpose of obtaining custody and visitation rights. Until a child custody and/or visitation order is entered by the court stemming from a paternity action, there is usually no legally recognized mechanism for unmarried persons to enforce custodial rights.  A paternity action may also involve a party’s request to change the legal name of the minor child and/or obtain reimbursement for pregnancy costs.

Why would  i file a paternity action?

By filing a paternity action, each parent has a right to conduct a non-invasive paternity test via oral swab.  If the paternity test results in a genetic match, either parent can seek to obtain a judgment of paternity.  Upon the entry of a paternity judgment both parents have legal right to request child custody, visitation and support orders from the court.

Who can be established as a parent under a parentage action?

There are several others ways to establish a parental relationship, including:

  • Voluntary Declaration of Paternity:  A form signed by the father at the hospital establishes paternity upon execution.  This can be rescinded within 60 days of execution.
  • Parentage By Estoppel: A court can order a parent, even if not the biological parent, to serve as the legal parent and enter a paternity judgment.
  • Artificial Insemination: If a woman is artificially inseminated with a man’s sperm, with his written consent, the donor can be established as the legal father.
  • Same Sex Parents:  Under the case of Alyssa B., same sex parents can be established as the legal parents through a paternity action.
  • Putative Marital Assumption:  Parents who attempted to marry, but the marriage was void for some reason, will be the presumed parents in a child born of that relationship for purposes of establishing paternity.

Why don’t parents who are married have to file a paternity action?

There is a marital presumption in California that if a child is born to a married couple, or within 300 days of death of either parent or the annulment or divorce of the marriage, the husband is presumed to be the biological father having legal rights concerning the child.

Where should i file a paternity action?

In order for California to have jurisdiction (the ability) to enter a paternity judgment, the child must be either conceived, born, or artificially inseminated within the state of California.  If none of these prerequisites exist, the state in which conception, birth or artificial insemination occurred is the correct jurisdiction to file a parentage action. 

Isn’t paternity established if the father is listed on the child’s birth certificate?

Not really.  The terms “establishing parentage” and “establishing paternity” mean that a court, or other appropriate governing body, judicially establishes that a man is a child’s father by making a judgment.  It occasionally happens that a man signs a “POP” declaration (paternity declaration) at the hospital and/or is listed as the father on the child’s birth certificate even though they are not the child’s biological father. 

What is child support?

Child support is a payment by one parent to the other parent for the maintenance and support of the child.  Child support is set by a “guideline” computer program formula, which looks most strongly on the incomes of the parties, the amount of time each parent spends with the child, the tax filing status, and whether either party has any appropriate “deductions” from their income such as other children or spousal support ordered payments and medical insurance.  This guideline calculation is used by the courts in 999 out of 1000 cases (the court has the authority to “deviate” from the guideline amount in very special circumstances.)  Child support is intended to pay for the child’s housing, food and clothing and other necessary expenses.  The person paying child support to the other party does not have a right to question what the payments are being used for.

Who pays for childcare and unreimbursed medical expenses in paternity cases?

Childcare expenses necessary for a parent to work or attend job training is shared equally between the parents under California law, regardless of which parent’s custody the child is in when they spend time with a childcare provider.  Expenses for a babysitter so one parent can have free time is not shared between the parties.  Additionally, unreimbursed healthcare expenses such as co-pays, prescription medications for a child, counseling, and orthodontics are all shared equally between the parties under the law.  The court has to order (absent extreme circumstances) that both parties share these expenses equally.

Are the costs of pregnancy and childbirth shared between parents in a paternity case?

A mother may petition the court to have the father share in the expenses related to pregnancy and childbirth, and the court will often order reimbursement for those expenses if they exist.  It is not the mother’s sole financial obligation to bring a child into this world.  This request is made right on the Petition to Establish a Parental Relationship.  It is important for the party requesting reimbursement of these expenses to make a motion for reimbursement of these expenses, or include these expenses in the list of items to be addressed at trial, and include evidence of the payment of these expenses.  If done properly, the court will never hesitate to order the other party to pay one-half of these necessary costs.