An Overview of Establishing Parental Relationship
In California a parent has the right (1) to be legally recognized as the parent of a child, (2) to have a parental relationship with the child, and (3) to provide physical, emotional, and financial support to the child. There are two types of parental relationship: natural and presumed parentage.
If the Couple Is Married:
If the mother of the child is married and living with her husband when the child is born, then the court will automatically assume that the husband of the mother is the father of the child. If the husband of the mother is not the father of the child, and the husband believes that he is not the father of the child, then the husband must contest paternity within the first two (2) years of the child’s life.
Under California Family Code Section 7611, a person will be presumed the natural parent of a child if any of the following are true:
- The husband/person and the natural child’s mother are married (or have ever been married) and the child is born either during the marriage or within 300 days after the marriage is terminated by death or divorce.
- Before the child’s birth, the parents attempted to become legally married, but the marriage was later determined to be invalid.
- After the child’s birth, the presumed father/parent marries the natural mother and the presumed parent consents to be named on the child’s birth record.
If the Couple Is Not Married:
If a couple is not married at the time a child is born, the parents of the child must take an action to establish or refute parentage. Under Family Code Section 7611 subdivision (d) a person who has been living with a child, holds the child out to the public as his own, and has shown responsible actions and commitment to the child, will be presumed as the parent of the child. If he is not the father, and he wishes to be, he will need to petition the court to be legally recognized as the father of the child. If a man/person claims that he is not the child’s father, then he must request a paternity test to prove that he is not the father of the child or move to set aside any judgment establishing parentage, under Family Code section 7646, within 2 years from the date he discovered or should have discovered the paternity judgment.
In California, paternity can be established by signing a voluntary Declaration of Paternity or through a court order. The easiest and quickest way to establish parentage is to sign a Voluntary Declaration of Paternity form. Under Family Code section 7573, if the parents sign a Declaration of Paternity at the time the child is born, then both parents will be presumed to be the legal parents of the child. As of January 1, 2005, the law assumes registered domestic partners as the legal parents of the child if they both sign the Declaration of Paternity when a child is born.
If a parent did not have the opportunity to sign the Voluntary Declaration of Paternity form, then either parent can file a petition to establish parentage through a court Judgment. To get a Judgment either parent can file a Petition to Determine Parental Relation along with a Summons with the Court, and serve the filed copies on the other parent. The parent served with the Petition and Summons will have 30 days to respond. If the parent fails to respond within the 30-days, the other parent can obtain a default Judgment establishing parentage. Once paternity has been established, the parent then becomes legally responsible for the child and will have the rights and responsibilities of a parent. Establishing paternity is important for both the child and the parent as it also entitles the child to the same rights and privileges as a child who came from parents who were married at the time of birth.
When the Mother’s Husband Is Not the Father:
When a married woman becomes pregnant by a man who is not her husband, all the parties involved must understand that while the laws in California presume that her husband/spouse is the father of the child, paternity will still need to be established if the biological father wants to receive the rights and responsibilities of being the father to the child or if the husband/spouse wants to relinquish his/their rights and responsibilities of being the parent to the child. As stated above, the biological father, the mother or the husband will need to petition the court for paternity testing within the time allowed by law or the law will be presumed that the husband of the mother is the natural parent of the child.
If you need assistance with a paternity matter and find yourself in a complicated situation, you should discuss your options with an experienced family law attorney who can guide you through complex issues. Simon Law is here to help. Call us today!
‘The views expressed in this article do not contain legal advice, may not current and is subject to change without notice. The information contained herein is provided for general information and educational purposes only and is not a substitute for professional advice. Should you need legal advice, contact Simon Law directly and request to speak to an attorney regarding your case.’