Paternity litigation refers to disputes concerning the identity of a child’s father. For mothers, establishing paternity is the first step to enforcing a father’s obligations to the child, including payments of child support. For fathers, establishing paternity is the first step to seeking custody and visitations rights. There are various ways of establishing paternity (or parentage) but below are five common methods:
A Voluntary Declaration (also known as a “POP” for Paternity Opportunity Program) can be signed in person by the father at a hospital where the mother gives birth. Alternatively, a parent may sign a declaration in person at a local child support agency office where the staff who witnessed the signing can forward the signed declaration to the Department of Child Support Services. Significantly, a signed declaration has the same force and effect as a judgment of paternity. As such, a parent who wants to revoke the declaration after the allowable 60-day rescission period must move the court to set aside the judgment of paternity.
2. Conclusive Presumption As to the Husband
Family Code §7540 provides that a man is conclusively presumed to be the father of a child if he was married to the mother and living with her at the time of conception and he was not impotent or sterile during this period. The courts have applied this conclusive presumption in many cases to find the husband to be the father even where there was undisputed evidence that the husband is NOT the biological father of the child. See Michael H. v. Gerald D. (1989) 491 U.S. 110. However, under Family Code § 7541(b) and (c), the husband, the child, the mother or the “presumed father” may bring a motion for blood test to dispute this conclusive presumption as long as the motion is filed within two years from the child’s birth.
3. Rebuttable Presumption Against A Man Who Held Out the Child As His
Paternity can be established against an individual by evidence that the individual received the child into his or her home and openly held out the child as his or her natural child. In other words, if a man accepts a child into his home and publicly acknowledges to everyone that the child is his, he is presumed to be the father of the child whether or not they are biologically related. Significantly, there is no specific time duration for the presumption to apply and the court has found a man to be the father of a child that he lived with for the first three months of the child’s life.
4. Paternity by Equitable Estoppel
Under the equitable estoppel presumption, a man is presumed to be the father if he falsely represented to the child that he was the father, and the child relied upon the representation by accepting and treating him as the natural father, the child was ignorant of the true facts and the representation was of such long duration that it frustrated the realistic opportunity to discover the natural father. In layman’s terms, the law will treat an individual, who knew that he was not the natural father, yet represented to the child that he was the child’s natural father and accepted the child’s love and affection in return, as the father of that child.
5. Blood Tests Presumption
This presumption is self-explanatory. Where an individual is required to submit to paternity evaluation blood tests and the results show that the individual cannot be excluded as a possible biological father and that the probability of paternity is 99% or greater, the individual is presumed to be the child’s father. This presumption can be rebutted by a preponderance of the evidence showing that either 1) the genetic testing was conducted improperly, 2) the alleged father may be infertile or had no access to the mother during the period conception, or 3) another man who had access to the mother during the period of conception also has a high paternity index.
Clearly, there are several ways to establish the identity of a child’s father in court. While the determination of paternity imposes child support obligations on the individual identified as the father, it also provides this individual with visitation or custody rights. Similarly, a child may want to establish paternity in order to inherit from the father’s estate. On the other hand, if you believe that you are not the father of a child, you can seek to establish paternity against another individual as to protect yourself against claims for child support. Please contact our office for more information on how to establish paternity or defend against a claim of paternity.
****The opinion above is not intended to be legal advice and absolutely does not create any attorney-client relationship between its author and the readers. Please consult an attorney for information or advice specific to your legal issue.****
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