Parentage/Paternity

Basic Information

In parentage cases, also called "paternity cases," the court makes orders that say who the child's legal parents are.

If parents are married when a child is born, there is usually no question about parentage. The law assumes that the husband is the father and the wife is the mother, so paternity is automatically established in most cases.

But for unmarried parents, parentage of their children needs to be established legally.

Note:  After January 1, 2005, if parents are registered domestic partners when a  child is born, the law assumes that the domestic partners are the child’s parents.  However, since this law is relatively new and unsettled, same-sex parents should  get legal advice to make sure that the parentage is clear.

What It Means to Establish Parentage

Establishing parentage means obtaining a court order or signing an official Declaration of Paternity that says who the legal parents of a child are. For example, if the parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until parentage is established. So even if a father can prove he is the biological father of a child, if he was never married to the mother, he does not legally have any rights or responsibilities for the child. For that, parentage must be established legally.

• Establishing parentage is necessary before custody, visitation, or child support will be ordered by a court. You can ask the judge for child support or custody and visitation orders as part of a case that establishes the child’s parentage.
• If a person does not admit that he or she is the parent, the court may order the alleged father, mother, and child to submit to genetic testing.

Once a person is established as the father or mother of a child, he or she will have all the rights and responsibilities of a parent:

• He or she will be able to request custody and visitation orders from the court so that he or she can legally visit with his or her child.
• He or she also will be responsible for paying child support and will have to pay half of the uninsured health-care costs for the children and half of the child-care costs that result from the custodial parent getting or having a job or going to school.

If a person is established as a legal parent of a child, that person MUST financially support the child. It is a crime for a legal parent to fail to support his or her child. A legal parent also has the right to get custody or visitation rights related to the child.

Reasons for Establishing Parentage of a Child

Establishing parentage is very important for a child. First, the child gets the emotional benefit of knowing who both of his or her parents are. And, legally, it entitles the child to the same rights and privileges as those of a child whose parents are married.

These legal rights and privileges are:

• Financial support from both parents;
• Legal documentation identifying both parents;
• Having the names of both parents on the child’s birth certificate;
• Access to family medical records and history;
• Health and life insurance coverage from either parent;
• The right to inherit from either parent; and
• The right to receive social security and veteran’s benefits, if available.

Once parentage is established, the court can make orders for child support, health insurance, child custody, visitation, name change, and reimbursement of pregnancy and birth expenses. Without establishing parentage, the court cannot make orders regarding these issues, so if 1 parent needs child support and the other will not pay voluntarily, the court will not be able to order child support until parentage is established.

And even if 1 of the child’s biological parents does not have any money or a job to support the child or does not want to be involved in the child’s life, it is still a good idea to establish parentage. The benefits to a child of establishing parentage go far beyond the financial issues as the list above shows and include things like allowing the child to get child support or health insurance later on, when the other parent gets a job or is in a better financial situation.

Presumed Parents

The law will presume a person is a child’s other parent under the following circumstances (unless proved otherwise to a court). For example, John will be presumed to be the child’s other parent if:

• He was married to the child’s mother when the child was conceived or born;
• He attempted to marry the mother (even if the marriage was not valid) and the child was conceived or born during the “marriage”;
• He married the mother after the birth and agreed either to have his name on the birth certificate or to support the child; or
• He welcomed the child into his home and openly acted as if the child was his own. This concept is called “parentage by estoppel” and means that the court can find that a man is the legal father, even if he is not the biological father, if he has always treated the child as his own.

The presumptions that apply to married couples also apply to those who entered into a registered domestic partnership after January 2005.

Ways to Establish Parentage

There are 2 main ways to establish parentage when the child’s parents are not married:

• Signing a voluntary Declaration of Paternity,
     OR
• Getting a court order (either on your own or with the help of the Local Child Support Agency).

A voluntary Declaration of Paternity is a California governmental form that, when signed by both parents, establishes them as the legal parents of the child. The form must be signed voluntarily. No one can force either the father or the mother to sign the form. The purpose of the Declaration of Paternity is to officially and legally establish who the father of the child is when the mother and father are not married to each other.

A properly signed Declaration of Paternity has the same effect as a court order establishing paternity for the child, without anyone having to go to court.

Once the declaration is signed, the form must be filed with the California Department of Child Support Services Paternity Opportunity Program (POP) in order to be effective.

Read the section on Establishing Parentage to learn more about declarations of paternity and other ways to establish parentage.

Disputing Parentage and Genetic Testing

In general, a man who is being told that he is the father of a child has the right, if he is not completely sure he is the father, to request a genetic (DNA) test to find out for sure if he is the father of that child.

DNA is the biological material that determines a person’s physical characteristics. It is found in almost all of the cells in the body, and each person’s DNA is unique.

Some of a person’s DNA coding is inherited from the mother. Some of the DNA coding is inherited from the father. Therefore, by comparing the DNA coding of a mother, father, and child, their parental relationship can be established.

Because saliva contains DNA (as does the rest of the body), samples of a person’s DNA can be taken by gently rubbing a sterile cotton squab (like a Q-tip) inside his or her mouth.

• If the Department of Child Support Services performs the test, normally there is no charge to either named parent.
• If the court orders the named parents to get DNA testing, there may be fees of several hundreds of dollars to have the testing done.
• The court will NOT accept private DNA testing as evidence in a paternity case unless the test has been ordered by the court.
• If the court orders DNA testing, it will provide the named parents with the information they need to get the tests done.
• The court will not accept DNA tests done at home or in a private medical facility.

In the section on Disputing Parentage there is a lot more information about how to request genetic testing to determine paternity.