Establishing paternity—the father of a child—is increasingly necessary in today’s non-traditional family structures. People who have not been touched by this issue might be surprised to know that it is not simply a matter of DNA testing.
When a child is born to a married couple who reside together, the law presumes that the husband is the father. More and more often, however, children are born to couples who are not married. When this happens, a determination must be made as to the father of the child.
Medical care providers are required to provide information to the mother of the child regarding a “voluntary declaration of paternity.” If the mother and the father sign a voluntary declaration, the father will be listed on the birth certificate and will have paternal rights and responsibilities under state law. There is no test required to prove that the father is biologically related to the child.
When no one steps forward to acknowledge paternity, a superior court can make the determination. This typically happens when the biological father does not know of his parentage or wants to avoid involvement with the child. A paternity action can be initiated in court by 1) the child’s mother, 2) the man claiming or denying paternity, 3) a child support agency, or 4) an adoption agency. In this situation, DNA testing is normally used to resolve the conflict.
The reasons for establishing paternity are several. Foremost is the need for financial support for the child. It is also in the State of California’s interest to see that both parents support their child. Otherwise, public assistance may be necessary to support the child. Appropriately, and as noted above, the state child support agency can therefore bring an action to establish paternity.
Another reason for establishing the identity of the father is for health care purposes. Eligibility for health insurance is an important benefit for children. A court can order health care coverage as appropriate once paternity is established. Genetic health information is also important for the child’s wellbeing throughout his life. Many health care decisions are impacted by genetic predispositions inherited from one’s parents.
The emotional and social development of a child can also be positively affected by a child having a father in his life. Even though the father may not live in the home, appropriate visitation arrangements can be made that will support the parent and child relationship. Even if the relationship is minimal, children are better off emotionally and socially knowing the identity of their fathers.
The attorneys at The Law Offices of Judy L. Burger have extensive experience in family law, including paternity matters. Make the call today to learn how our attorneys can help you proceed through the divorce process while protecting your rights or those of loved ones: (415) 298-8314.
Establishing Paternity
In the much-publicized divorce of Katie Holmes and Tom Cruise, the tabloids found dozens of opportunities to photograph each parent out and about with their daughter Suri. It’s possible they were simply going about their daily lives while being hounded by the paparazzi, but it is just as likely the soon-to-be-divorced parents were trying to build their respective cases for custody.
When a marriage falls apart, the children of the relationship are caught in the middle. Parents often overlook the negative effect of their verbal sparring on the children. Courts, on the other hand, are not prone to overlook a parent’s bad behavior while the children are present.
Just as parents take measures to protect their children from negative outside influences, parents in the midst of a divorce have a duty to protect their children as much as possible. The children’s lives are going to change, but that doesn’t mean the children should be privy to all dirty laundry.
The details of a divorce should only be shared with children to the extent warranted by each child’s mental and emotional maturity level, and never in a manner reasonably expected to cause the child to harbor ill will for the other parent.
In our experience, children are flexible, adaptable, and perceptive. They may appear to be largely unaffected by your divorce, when in fact they have many questions they are simply afraid to ask. Counseling is often recommended after a divorce to help children process the break up of their parents and learn to deal with their conflicting emotions in a healthy way.
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The stress of being a military member deployed overseas to a hostile environment can be compounded by worrying about children left behind in the care of others. The joy of finally coming home can quickly turn into a nightmare if an ex-spouse refuses to return a child. This subject was the basis for a recent ruling from a California Court of Appeal.
In the case entitled In re Marriage of E.U. and J.E., both of the parents are military members. When they divorced, the court awarded joint legal custody to both parents, with the father having primary physical custody. Anticipating the possibility of deployments for both parents, the court included provisions in the final order that if one parent deployed, then the other parent would assume the role of primary parent. The order further provided that when the deployment ended, custody would revert to pre-deployment status upon return of the deployed member.
As fate would have it, the father deployed and while he was away the mother filed for and was granted a temporary custody order. When the father returned, he commenced a long and arduous legal battle to regain primary custody of his child as originally ordered. Most recently, a California Court of Appeals found in the father’s favor and he regained custody of his child.
Interestingly, during the course of the proceedings, the California Legislature passed a statute requiring the return of a child in a situation such as this to the primary custody holder. Time will tell whether and to what extent this law will be challenged by those claiming a situation has changed and returning the child to a parent recently returned from deployment is contrary to the child’s best interest.
If litigation is necessary to protect a child’s best interest, then it should be commenced immediately.
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