Establishing a Father’s Rights
The state of California commonly recognizes only married husbands as legal fathers and grants them parental rights. If you were unmarried during the conception or birth of your child, it is important that you establish paternity to retain your rights. Child custody, visitation and child support can all be affected by paternity.
Simply listing a man on a child’s birth certificate does not establish paternity without him either being married to the child’s mother or having executed a voluntary declaration of paternity. There may be circumstances, however, in which such a birth certificate listing gives rise to a rebuttable presumption that a voluntary declaration of paternity was executed. The purpose of the provisions on voluntary paternity declarations is to increase the number of children who may receive child support and other benefits and decrease the time and money required to establish paternity. Fam C §7570(b).
With limited exceptions, a voluntary declaration of paternity has the same force and effect as a judgment of paternity and is to be recognized as a basis to establish child custody and/or visitation, and child support. Fam C §7573.
If genetic testing proves that the man who signed the voluntary declaration is not identified as the genetic parent of the child under Fam C §7555 he MUST request the voluntary declaration of paternity be set aside no later than 2 years from the child’s birth. The genetic testing must comply with Fam C §§7550–7562 and be requested not later than 2 years from the child’s birth. Fam C §7575(b)(3)(A).
Even if genetic testing proves the man is not the genetic parent, the court can refuse to set it aside. It is very important to act quickly in these matters.
On the other side, if you are a mother looking to establish the paternity of a father in order to retain child support or involve the rightful father in your child’s life, a paternity test may be to your advantage. Establishing parentage can be done fairly easily and the majority of tests that are available today are reliable.
The California court system can provide a questioning parent a Declaration of Paternity or court order asking to define who the legal parents of a child are through paternal testing. Genetic testing is a common test that establishes paternity by a simple swab of the inside of the child’s mouth and the alleged father’s mouth.
Establishing parentage is important and beneficial to both you and your child. Financial and emotional support should be obtained by both parents and the right to inheritance and health insurance will be guaranteed once paternity is established.
How Can a Family Attorney Help Me?
Even if one parent wishes to have little or no involvement in a child’s life, it is important that you establish parentage. In order for a mother to obtain child support or a father to obtain visitation to their child, they need to establish paternity. If you are having a difficult time with an ex or significant other in determining the paternity of the child, it is important that you contact an attorney as soon as possible.
Fam C § 7570
(a) The Legislature hereby finds and declares as follows:
(1) There is a compelling state interest in establishing paternity for all children. Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to, social security, health insurance, survivors’ benefits, military benefits, and inheritance rights. Knowledge of family medical history is often necessary for correct medical diagnosis and treatment. Additionally, knowing one’s father is important to a child’s development.
(2) A simple system allowing for establishment of voluntary paternity will result in a significant increase in the ease of establishing paternity, a significant increase in paternity establishment, an increase in the number of children who have greater access to child support and other benefits, and a significant decrease in the time and money required to establish paternity due to the removal of the need for a lengthy and expensive court process to determine and establish paternity and is in the public interest.
(b) This section shall remain in effect only until January 1, 2020, and as of that date is repealed. [Amended by Stats. 2018, Ch. 876, Sec. 26. (AB 2684) Effective January 1, 2019. Repealed as of January 1, 2020, by its own provisions. See later operative version added by Stats. 2018, Ch. 876]
Fam C § 7570
(a) The Legislature hereby finds and declares as follows:
(1) There is a compelling state interest in establishing parentage for all children. Establishing parentage is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to, social security, health insurance, survivors’ benefits, military benefits, and inheritance rights.
(2) A simple administrative system allowing for establishment of voluntary parentage will result in a significant increase in the ease of establishing parentage, a significant increase in parentage establishment, an increase in the number of children who have greater access to child support and other benefits, and a significant decrease in the time and money required to establish parentage due to the removal of the need for a lengthy and expensive court process to determine and establish parentage and is in the public interest.
(b) This section shall become operative on January 1, 2020. [Repealed and added by Stats. 2018, Ch. 876, Sec. 27. (AB 2684) Effective January 1, 2019. Section operative January 1, 2020, by its own provisions]
Fam C § 7573
(a) Except as provided in Sections 7575, 7576, 7577, and 7612, a completed voluntary declaration of paternity, as described in Section 7574, that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support.
(b) This section shall remain in effect only until January 1, 2020, and as of that date is repealed. [Amended by Stats. 2018, Ch. 876, Sec. 32. (AB 2684) Effective January 1, 2019. Repealed as of January 1, 2020, by its own provisions. See later operative version added by Stats. 2018, Ch. 876]
Fam C § 7573
(a) The following persons may sign a voluntary declaration of parentage to establish the parentage of the child:
(1) An unmarried woman who gave birth to the child and another person who is a genetic parent.
(2) A married or unmarried woman who gave birth to the child and another person who is a parent under Section 7613 of a child conceived through assisted reproduction.
(b) A voluntary declaration of parentage shall be in a record signed by the woman who gave birth to the child and by either the only possible genetic parent other than the woman who gave birth or the intended parent of a child conceived through assisted reproduction, and the signatures shall be attested by a notary or witnessed.
(c) Except as provided by Section 7580, a voluntary declaration of parentage takes effect on the filing of the document with the Department of Child Support Services.
(d) Except as provided in Sections 7573.5, 7575, 7576, 7577, and 7580, a completed voluntary declaration of parentage that complies with this chapter and that has been filed with the Department of Child Support Services is equivalent to a judgment of parentage of the child and confers on the declarant all rights and duties of a parent.
(e) The court shall give full faith and credit to a voluntary declaration of parentage effective in another state if the declaration was in a signed record and otherwise complies with the law of the other state.
(f) This section shall become operative on January 1, 2020. [Repealed and added by Stats. 2018, Ch. 876, Sec. 33. (AB 2684) Effective January 1, 2019. Section operative January 1, 2020, by its own provisions]
Fam C § 7575
(a) Either parent may rescind the voluntary declaration of paternity by filing a rescission form with the Department of Child Support Services within 60 days of the date of execution of the declaration by the attesting father or attesting mother, whichever signature is later, unless a court order for custody, visitation, or child support has been entered in an action in which the signatory seeking to rescind was a party. The Department of Child Support Services shall develop a form to be used by parents to rescind the declaration of paternity and instruction on how to complete and file the rescission with the Department of Child Support Services. The form shall include a declaration under penalty of perjury completed by the person filing the rescission form that certifies that a copy of the rescission form was sent by any form of mail requiring a return receipt to the other person who signed the voluntary declaration of paternity. A copy of the return receipt shall be attached to the rescission form when filed with the Department of Child Support Services. The form and instructions shall be written in simple, easy to understand language and shall be made available at the local family support office and the office of local registrar of births and deaths. The department shall, upon written request, provide to a court or commissioner a copy of any rescission form filed with the department that is relevant to proceedings before the court or commissioner.
(b) (1) Notwithstanding Section 7573, if the court finds that the man who signed the voluntary declaration is not identified as a genetic parent of the child under Section 7555, the court may set aside the voluntary declaration of paternity unless the court determines that denial of the action to set aside the voluntary declaration of paternity is in the best interest of the child, after consideration of all of the following factors:
(A) The age of the child.
(B) The length of time since the execution of the voluntary declaration of paternity by the man who signed the voluntary declaration.
(C) The nature, duration, and quality of any relationship between the man who signed the voluntary declaration and the child, including the duration and frequency of any time periods during which the child and the man who signed the voluntary declaration resided in the same household or enjoyed a parent-child relationship.
(D) The request of the man who signed the voluntary declaration that the parent-child relationship continue.
(E) Notice by the biological father of the child that he does not oppose preservation of the relationship between the man who signed the voluntary declaration and the child.
(F) The benefit or detriment to the child in establishing the biological parentage of the child.
(G) Whether the conduct of the man who signed the voluntary declaration has impaired the ability to ascertain the identity of, or get support from, the biological father.
(H) Additional factors deemed by the court to be relevant to its determination of the best interest of the child.
(2) If the court denies the action, the court shall state on the record the basis for the denial of the action and any supporting facts.
(3) (A) The notice of motion for genetic tests under this section may be filed not later than two years from the date of the child’s birth by a local child support agency, the mother, the man who signed the voluntary declaration as the child’s father, or in an action to determine the existence or nonexistence of the father and child relationship pursuant to Section 7630 or in any action to establish an order for child custody, visitation, or child support based upon the voluntary declaration of paternity.
(B) The local child support agency’s authority under this subdivision is limited to those circumstances where there is a conflict between a voluntary acknowledgment of paternity and a judgment of paternity or a conflict between two or more voluntary acknowledgments of paternity.
(4) The notice of motion for genetic tests pursuant to this section shall be supported by a declaration under oath submitted by the moving party stating the factual basis for putting the issue of paternity before the court.
(c) (1) Nothing in this chapter shall be construed to prejudice or bar the rights of either parent to file an action or motion to set aside the voluntary declaration of paternity on any of the grounds described in, and within the time limits specified in, Section 473 of the Code of Civil Procedure. If the action or motion to set aside a judgment is required to be filed within a specified time period under Section 473 of the Code of Civil Procedure, the period within which the action or motion to set aside the voluntary declaration of paternity must be filed shall commence on the date that the court makes an initial order for custody, visitation, or child support based upon a voluntary declaration of paternity.
(2) The parent or local child support agency seeking to set aside the voluntary declaration of paternity shall have the burden of proof.
(3) Any order for custody, visitation, or child support shall remain in effect until the court determines that the voluntary declaration of paternity should be set aside, subject to the court’s power to modify the orders as otherwise provided by law.
(4) Nothing in this section is intended to restrict a court from acting as a court of equity.
(5) If the voluntary declaration of paternity is set aside pursuant to paragraph (1), the court shall order that the mother, child, and alleged father submit to genetic tests pursuant to Chapter 2 (commencing with Section 7550). If the court finds that the person who executed the voluntary declaration of paternity is not identified as the genetic parent of the child under Section 7555, the question of paternity shall be resolved accordingly. If the person who executed the declaration as the father of the child is not excluded as a possible father, the question of paternity shall be resolved as otherwise provided by law. If the person who executed the declaration of paternity is ultimately determined to be the father of the child, any child support that accrued under an order based upon the voluntary declaration of paternity shall remain due and owing.
(6) The Judicial Council shall develop the forms and procedures necessary to effectuate this subdivision.
(d) This section shall remain in effect only until January 1, 2020, and as of that date is repealed. [Amended by Stats. 2018, Ch. 876, Sec. 37. (AB 2684) Effective January 1, 2019. Repealed as of January 1, 2020, by its own provisions. See later operative version added by Stats. 2018, Ch. 876]
Fam C § 7575
(a) Either parent may rescind the voluntary declaration of parentage by filing a rescission form with the Department of Child Support Services within 60 days of the date of execution of the declaration by the attesting parents, whichever signature is later, unless a court order for custody, visitation, or child support has been entered in an action in which the signatory seeking to rescind was a party. The Department of Child Support Services shall develop a form to be used by parents to rescind the declaration of parentage and instructions on how to complete and file the rescission with the Department of Child Support Services. The form shall include a declaration under penalty of perjury completed by the person filing the rescission form that certifies that a copy of the rescission form was sent by any form of mail requiring a return receipt to the other person who signed the voluntary declaration of parentage. A copy of the return receipt shall be attached to the rescission form when filed with the Department of Child Support Services. The form and instructions shall be written in simple, easy to understand language and shall be made available at the local family support office and the office of local registrar of births and deaths. The department shall, upon written request, provide to a court or commissioner a copy of any rescission form filed with the department that is relevant to proceedings before the court or commissioner.
(b) This section shall become operative on January 1, 2020. [Repealed and added by Stats. 2018, Ch. 876, Sec. 38. (AB 2684) Effective January 1, 2019. Section operative January 1, 2020, by its own provisions]
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