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Establishing Parentage and Paternity

When a father is not married to a mother at time of birth or conception, he has no legal rights. In San Diego, California, the California Department of Social Services instituted a program with licensed hospitals and clinics to establish the Paternity Opportunity Program. This offers parents a legal method to establish a legal relationship between unmarried fathers and their sons and daughters. This program also includes San Diego prenatal clinics, San Diego county welfare offices, San Diego Local Vital Records and, of course, the San Diego County Courts.

The Declaration of Paternity is a legal form which must be fully executed and then filed with the State of California. This voluntarily establishes the legal relationship between father and their daughters and sons. This form is completed after the birth of the child however there is an exception for fathers-to-be who are in the military and on deployment. The form can be completed at a San Diego hospital in which the birth clerk will ask the unmarried father and mother if they want to execute the Declaration of Paternity. The form can also be completed after the hospital stay at the Office of Vital Records in San Diego and also at the Department of Child Support Services.

Once the Declaration of Paternity is filed with the State of California this is the legal equivalent of a court order for Judgment of Paternity without going to court and will give the same rights as if the child[ren] was born within the marriage. Copies are also sent to the California Paternity Opportunity Program, the San Diego Department of Child Support Services and also given to the parents. This will not establish custody and visitation and a different procedure is needed for this and addressed in another article on this website.

The rights which are conferred by the Declaration of Paternity include: inheritance protection; medical and life insurance coverage as eligible through employment and access to medical and educational records. This also includes legal rights to custody and visitation. In San Diego, the father will file a Complaint to Establish a Parental Relationship and also a motion called an "order to show cause" for custody and visitation. This will set a mandatory mediation [family court services] and also a court hearing before a Judge who will issue orders regarding the parenting plan of the child[ren]. Once the Declaration of Paternity is signed, then the issue of contesting the parentage is over and the only issues remaining are custody/visitation and child support. There are several court houses in San Diego County in which this Complaint can be filed: main family law court house downtown; Vista court house; Chula Vista court house and El Cajon court house.

The obligations which are conferred by the Declaration of Paternity include: obligation to pay child support of which a violation is enforceable by civil and criminal penalties as well as the mandatory "add ons" which can include one half of any day care costs for employment or education as well as uninsured, unreimbursed medical, dental, orthodontic, counseling and vision.

Conversely, any parent who has signed a Declaration of Paternity can also file another Declaration to cancel: Declaration of Paternity Rescission. This must be done within sixty days of the signing of the Declaration of Paternity. This rescission will not be effective if there is a court order for custody, visitation or child support which has been entered. The process is technical and only one parent need sign the Declaration of Paternity Rescission however the other parent must be notified by certified mail and the return receipt should be kept in a safe place.

There are also factual situation which involve paternity and married parents. This, in San Diego, can occur when a father or mother is on deployment and the child is conceived when the other parent does not have "access" for a sexual relationship. Under San Diego law, a child born when a husband and wife are married at time of conception and/or birth is presumed to be the child of the married parents however [with DNA evidence] it can now be proven that the husband is not the biological parent. A motion for non paternity needs to be filed immediately in these situations since a husband who holds himself out as a father and becomes either a "presumed father" or "de facto parent" can be found legally liable for a child which is not his biologically. This is a very complicated issue and an attorney needs to be consulted at once if this is your situation.

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