San Diego Paternity Rights Attorneys
What You Need to Know About Parental Presumption in California
Paternity can come into dispute when a father’s name is not on a child’s birth certificate, or when there is some question about whether the correct father’s name is listed. In the state of California, if the mother is unmarried, then for the father to be listed on the birth certificate, he must sign a Declaration of Paternity, either at the hospital or at a later date.
Having legally established paternity is of extreme importance for all parties. Mothers may not collect child support without first establishing paternity, and fathers cannot establish orders for custody or visitation without first determining parentage. Establishing paternity is relatively simple, though dealing with family law statutes can be challenging, confusing, and emotional, particularly when you are fighting for the custody of a child. When the court approaches custody cases, it looks at a number of factors; but in general, two principles outweigh all others.
- First of all, the court will look at what’s in the best interests of the child.
- Second, there is a concept known as parental presumption that will supersede most other factors.
Our San Diego paternity lawyers at Mattis Law, A.P.C., have years of experience helping both women and men obtain paternity orders. Contact our office today at (858) 328-4400 for a free initial consultation.
What Is Parental Presumption?
In California, parental presumption means that custody should be granted to a fit biological parent rather than another person who may have a vested interest in the child. While this is a strong tenet of child custody cases, it is not the law; more of a guideline based upon years of legal precedents.
If a decision must be made between granting custody to a biological parent or someone else, the court will normally grant custody to the parent unless there is compelling evidence to do otherwise. (This is assuming that the parent is capable to act as guardian and willing to do so.)
Obtaining Paternity Orders for Men and Women
The first thing the court must establish when determining custody is who the parents actually are. In the case of the mother, she will be listed on the birth certificate, but this is not necessarily so for the father. There may be no father named, or it might be the incorrect father.
When establishing parentage, California family courts will look at the following factors:
- Whether the man in question was wedded to the mother of the child at the time of conception or birth (or thought he was married to the mother, in cases when the marriage was later invalidated).
- Whether the man married the mother subsequent to the child’s birth and has supported the child.
- Whether the man has acted as if he were the legal father, under the concept known as "parentage by estoppel."
California courts will send the parties for genetic testing if paternity is in dispute, and an additional hearing will be held shortly thereafter. If testing shows the man is not the father, then the issue is resolved and the case is over. If the man is found to be the biological parent, the San Diego family court will move forward with issues such as child custody, child support, and child support arrears.
It is common for people to be frustrated that these additional issues cannot be established in California without first establishing paternity, but it is a necessary step.
The Steps Involved
DNA-testing methods include a swab test and blood test. In general, DNA testing centers are easy to locate around the state and have reasonable costs. Quickly establishing paternity will allow you to deal with important issues surrounding the welfare of your child sooner rather than later, or to conclusively prove you are not the parent. Having an attorney to assist you can speed the process along.
If you have been determined to be the father of a child, then you are entitled to petition for visitation and custody rights. California has two primary categories of custody: physical and legal custody. The former means that the child lives in your household while the latter indicates that you have the right and responsibility to participate in the decision-making for the child, including education, medical care, and other major issues.
In Loco Parentis
Another common difficulty arises when someone who is not the parent, but who has been acting in the role of parent for a significant period of time (in loco parentis), is seeking custody against a biological parent. This could include stepparents, grandparents, adopted parents, or a legal guardian. The court will weigh all the different factors very carefully before ordering a child to leave the care of the only parent he or she has ever known.
It should also be noted that parental presumption does not apply to parents who have voluntarily given up their parental rights, or a parent previously deemed unfit. A biological parent who has relinquished his or her parental rights will likely need to prove to the court that he or she is now emotionally, financially, and morally fit to be a parent.
Choose a San Diego Firm with Experience in Paternity Cases
Mattis Law, A.P.C. fully understands the process and will help you get your case moving along quickly. Once retained, our team will petition the court for DNA testing so that the larger issues, such as whether a parent should be allowed to move a child away from California, can be decided. We will conduct necessary discovery so all of the parties' rights and obligations may be established once paternity is confirmed. Do not risk your child's future on a less experienced firm. Contact our Southern California family lawyers today for a free consultation.
At your initial consultation, Mattis Law, A.P.C., will determine what your overall goals are and develop a plan for helping you to reach them. With years of experience, there are few situations in California family courts that we have not dealt with. Contact our San Diego law office today at (858) 328-4400 to schedule a consultation.