In San Diego, California there are many cases in which parents are not married at time of birth of time or conception. The court houses which hear these cases are in San Diego, El Cajon, Chula Vista and Vista and these are considered to be in the family law courts. This area of paternity and parental rights is complicated and below is information which is useful for parents who were not married at time of birth or time of conception,
In San Diego, California the law is clear that there is a compelling interest in establishing that there are both a mother and father for each child. Under the family law code, the establishment of paternity is the legal procedure for the award of custody, visitation and child support. There are only three issues in any paternity case: child custody; child visitation and child support. The establishment of the legal relationship via paternity is also important for the child to obtain benefits through the father including social security, military benefits, health insurance, inheritance rights, survivor benefits and others.
In San Diego, California there is a system for a voluntary declaration of paternity which is used at many of the major San Diego hospitals when there is a live birth. This is codified in the law as well. There are also presumptions that a man is presumed to be the father of a child if the following conditions are met: man and child’s natural mother were married to each other and the child is born during the marriage or within 300 days after marital status terminated; before birth the parties attempted to marry even if the marriage is not valid in some circumstances; after the child’s birth [with the father’s consent] he is name as the child’s father on the birth certificate; there is a written court order that the man is the father or a court order to pay child support; if the child is received into the man’s home and he openly holds out the child as his natural son or daughter. In San Diego, there is a Judicial Council Form which is a Judgment and this is often used for paternity cases so that the rights of the unmarried man as the father are clear and recognized by the law in San Diego, California and any other jurisdiction.
In San Diego, California [rather than using the above Judgment of Paternity] many males use the voluntary declaration of paternity. These are often used in hospitals as stated above and are sometimes used in other circumstances as well. The following information, per the family law code, must be contained in the voluntary declaration of paternity in order for it to comply with the family law code including the legal rights and obligations of both parents and the child which will result from the establishment of paternity and the enumeration of the constitutional rights which are mandatory. These rights include the following: to have the issue of the paternity decided by a court; to have a San Diego paternity attorney appointed to represent the father if he cannot afford one; to have notice of the hearing when there is any issue of paternity; to be able to have the opportunity to present his case in court; to be able to present evidence and witnesses and to cross examine witnesses and to represent himself if he so chooses. Once the establishment of paternity is made, then the father has all of the same rights as if the parties were married and all of the same obligations including the obligation to support. Failure to support can lead to both criminal and/or civil penalties. In the past, there were many trials with witnesses regarding whether or not the male was the father. More recently, this has been supplanted by the DNA test which is recognized as the accepted scientific standard for the determination of whether a male is the biological father or not.
There are instances in which a male will sign the voluntary declaration of paternity and then find out later he is not the biological father. These are very complicated cases in that the standard to set aside is the best interests of the child after consideration of pertinent factors and not simply whether he is the biological father. These cases can be among the most emotional and contentious. There are many factors in a court’s consideration of whether or not to set aside this voluntary declaration of paternity. If this is your factual situation, please contact our office for a complimentary consultation as time is of the essence in the filing of these motions. These motions are most often brought after a child support agency brings a motion for child support and enforcement of the voluntary declaration of paternity and the male has evidence that he is not the biological father even though he signed the voluntary declaration of paternity. The courts also consider the age of the child, the length of time from the signing of the voluntary declaration of paternity and the motion, the nature and quality of the relationship [if any] between father and child and other factors. There are cases in which a male who is not the biological father has been found to be legally the father and obligated to pay child support.
Contact Us Online or call us at 858-312-8500 in Southern California. Our San Diego paternity lawyers will be pleased to offer you a complimentary and confidential consultation up to a length of 30 minutes to discuss strategies and techniques to assist in protecting your rights and trying to obtain your legal goals.