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Determining Paternity

by / Tuesday, 15 May 2018 / Published in Divorce, Family Law, Paternity, Spousal Support

Determining Paternity

There are numerous reasons for why you would seek to prove the paternity of your child‘s father. These reasons are not just for being able to receive child support. Being able to legally prove paternity also opens the door to the ability of your child receiving legal rights to social security or Veteran’s benefits, or possible inheritance – in the event that the birth father passes away.

What is Paternity?

Paternity is “the state or condition of being a father.” It’s important to establish this for numerous reasons – we will go into this further below – but either the mother or the father of the child may file the Petition to Establish Parental Relationship of a child. When paternity is established (should it not be evident) through a paternity test, a court will make decisions on the issues of child custody, child support, and child visitation.

Reasons for a Paternity Test

Financial

It can be hard to raise a child on one income. A mother seeking child support compensation will need to prove that the man she is seeking child support payments from is actually the father.

Un-Located Fathers

Often times a woman seeking child support will have to deal with a father that cannot be located. Most states have measures in place to track down these fathers that claim they are not the father.  Once a man is located, a court will issue a paternity test to determine if the man is the father. This will then determine if the man needs to provide child support.

Helpful for Fathers

Paternity tests determine if a child is yours or not.  If you are unsure of your paternity, a paternity test is the only way you will be able to legally say you do not need to make child support payments.

A Note About At-Home Paternity Tests

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While many “at-home” paternity tests exist, only tests taken in court-approved locations can be deemed as legally official. These paternity tests require an approved official, such as a laboratory employee, to collect DNA. The test cannot be handled by either parent in order to prevent possible tampering.

Establishing Paternity

To establish paternity, you will need to do the following:

  • If you were married to your husband when your child was born, it is legally assumed that you are the legal father.
  • If you were not married when your child was born, you must legally determine the father of the child through a court-approved paternity test. This test will be the definitive answer on paternity.

Prove Paternity Cases

When parents are unmarried at the time of conception or birth of a child it can be difficult to establish paternal rights through a paternity case. Because these types of cases can be complex, it helps to consult an experienced family law attorney. Below are some legal guidelines for paternity cases.

California Family Code section 7570

California Family Code section 7570 states “there is a compelling state interest in establishing paternity for all children.” This is because “establishing paternity is the first step toward a child support award.” Paternity is used as basis for child custody and visitation orders. A father’s paternity must be determined in order for the child to receive the following: health insurance, social security, military benefits, and inheritance rights. The code states, “knowing one’s father is important to a child’s development.”

California’s Procedure For Voluntary Paternity

California has an established procedure for establishing voluntary paternity. When a child is born and the parents are unmarried, the parents are able to sign a Declaration of Paternity that establishes they are the legal parents of the child. Signing this form is completely voluntary for both parents.

This declaration can be signed at the hospital when the child is born. If signed at the hospital, the father’s name will go on the child’s birth certificate. This means that the mother does not need to go to court to prove who the father of the child is.

You are not obligated to sign the letter at the hospital. But, if the parents decide to sign this form after the child’s birth certificate has been issued, a new birth certificate will need to be issued with the father’s name.

Signing this form when you are unmarried parents saves both parties, as well as the court, time and money when it comes to determining paternity.

Child Custody

There are different forms of child custody: legal custody, physical custody, sole custody, and joint custody.

1. Physical Custody

Physical custody means a parent has gained the legal right (typically through a court ruling) to have a child live with him or her. Usually if a parent has physical custody they also have sole custody of the child, which means the other parent has visitation rights.

2. Legal Custody

Legal custody allows a parent to make decisions regarding various aspects of a child’s life, including: education, religion, and medical care or legal issues.

3. Joint Custody

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Joint custody is able to be awarded to the parents if they are divorced, separated, no longer living together, or if they never lived together but still shared a child. The awarding of joint custody to both parents means each parent is able to make decisions regarding the child. Joint custody also comes in various forms, including: joint legal custody, joint physical custody, or joint legal and physical custody. Usually if a couple shares joint physical custody they also share joint legal custody. But if a couple shares joint legal custody they do not always also share joint physical custody.

Joint Child Custody Arrangements

Joint Child Custody can take various forms, such as:

joint legal custody – where the parents share the decision-making responsibilities.

joint physical custody – where children spend time with each parent separately.

joint legal and physical custody – a combination of the above.

Joint Child Custody – Advantages and Disadvantages

There are advantages and disadvantages to joint child custody. While it ensures children continue contact with both parents, children still need to be shuttled from one parent to the other. This can be a difficult situation for non-cooperative parents, and thus can be a hard situation for children stuck in the middle. Regardless of if parents are cooperative or non-cooperative, it’s crucial that all financial records of groceries, finances associated with a child’s after school activities, medical care, and clothing are kept. In cases where parents argue about these things, a judge will appreciate finely detailed records. If parents can maintain a positive parenting schedule and approach, and keep the child’s best interests in mind, joint custody can be a positive and comforting experience for a child.

4. Sole Custody

There are two forms of sole custody a parent can have: sole legal custody or sole physical custody. Courts seem to be moving away from awarding sole custody to one parent as more information is coming out about the importance of having both parents in a child’s life. In cases where a parent has been deemed unfit due to a history of neglect or abuse, a known dependency on drugs or alcohol, or a new parented that has been deemed unfit, a court will usually award sole physical custody to one parent.  It’s advised that unless a parent has demonstrated the above issues, that you do not seek sole custody, due to the importance of having both parents in a child’s life.

While the trend is to award joint custody, in cases where courts do award sole physical custody the parents still usually share joint legal custody (which means both parents are able to make legal decisions regarding the child), unless a parents has been deemed unfit to make those legal decisions.

Filing For Sole Custody

While most courts favor joint custody, if you feel the parent you share a child with is unfit you can file for sole child custody of your child. Here are the steps to do so.

File Correct Forms

You’ll want to either work with a court clerk or your family law attorney to determine which forms you’ll want to use when petitioning for sole child custody. The type of petition you file is dependent on your specific circumstances. Here are some examples of petitions to file:

  • petition to update existing child custody orders
  • petition to establish custody
  • petition to establish paternity and install custody

Make sure your family law attorney reviews all forms prior to your submission. This will ensure everything is filed correctly and in the way that will ensure the outcome you want. Make a copy for yourself and for the other parent. The court will keep the original.

Get a Mediation or Hearing Date

Once your sole child custody petition is filed, you will get a date for either a mediation session or court date. Both you and the other parent need to be present at this date in order to meet a final agreement regarding the child’s custody.

Work with a Family Law Attorney

The first thing you should do if you are seeking paternity or having to deal with custody disputes is hire a family law lawyer that works with child custody cases. A lawyer will be able to help you decide your best course of action based on your situation. Additionally, it’s important to remember that filing for child custody does not necessarily mean you get child support. But a child custody order does not automatically give you child support.

For advice on child custody or child support, you need the expert law firm of Khalaf Law Group. Schedule a consultation today.

Ted Khalaf, Esq.

Khalaf Law Group

33 S. Catalina Ave. Ste. 202

Pasadena, Ca. 91106

(626) 478-3550

https://bestdivorcelawyer.co

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