Articles Posted in Paternity

in-the-lab-2-1251077.jpgMost divorce cases require the parties to address and resolve many challenging issues, such as the division of marital property, spousal support, and other financial matters. But it is important to realize that each case (and each family) is different. Some spouses disagree over child custody and visitation, while others may see eye to eye on matters of physical and legal custody. Because of the unique nature of each divorce, parties contemplating the end of their marriage are encouraged to consult with a highly experienced San Diego family law attorney who will know the best way to approach each individual case.

A recent California divorce garnering national attention involves the fate of the couple’s frozen embryos. According to a news article, Dr. Mimi Lee and her husband Stephen Findley were married five years ago. Just prior to the wedding, Lee found out that she had breast cancer, and the couple decided to create and freeze five embryos. Findley filed for divorce two years ago and sought to have the embryos destroyed, in accordance with the consent agreement the parties signed prior to engaging in the reproductive technology.
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usa-maps-1055635-m.jpgChild custody issues typically arise within the confines of a divorce or legal separation proceeding. But couples who have never married and have a child together could still face legal obstacles if they separate and cannot agree to a parenting plan governing child custody or visitation. In such a situation, there could also be matters of paternity to address. California family law dictates in large measure the procedures to follow when trying to sort through any custody and visitation issue. Fortunately, an experienced San Diego family law attorney can help parents resolve any legal issues resulting from a divorce or related proceeding.

California, like many states in the country, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, widely known as the “UCCJEA.” It is codified at section 3400 et seq, and it sets forth when a state court has jurisdiction to render an initial child custody determination. While the statutory provisions may appear to be somewhat straightforward, there are times when the court must intervene to interpret the language, depending on the particular circumstances or facts before the court. A good example of this is a recent case where the California appellate court was called upon to resolve a dispute between two parents over the custody of their very young child.
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balance-875413-m.jpgChild support is an important part of most family law cases involving minor children. Courts will order child support not only in divorce cases, but in paternity actions as well. Section 3900 of the California family code governs child support and provides, in part, that both the mother and father of a minor child have an equal responsibility to support their child. The code further provides that this obligation continues generally until the child completes 12th grade or attains the age of 19 years, whichever occurs first. But in many cases, one parent may not be satisfied with the child support order and file an objection with the court. There are important legal concepts at play in any child support case. If you are involved in a divorce or paternity matter, it is important to contact an experienced family law attorney from the local San Diego area, someone who can help sort through the myriad issues with ease and confidence.

In a recent California child support case, a couple lived together and had two children but never married. When they separated, the couple stipulated to a paternity action judgment, which set forth the father’s paternity, his visitation rights, and a monthly monetary child support payment to be made to the mother, who was awarded physical custody of the kids. A bit later on, the couple reconciled and the father moved into the residence where the mother and children had been living. But after nine months, the father moved out. The court was asked to determine a matter of first impression in the state: whether a father can obtain any credit for actual, in-the-home child support he afforded the children during the nine-month period he lived with them and their mother?
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father-457513-s.jpgCalifornia law provides a means by which one may establish the existence of a parent/child relationship. As is relevant to the case described below, under former Section 7611 of the Uniform Parentage Act, a man is presumed to be the natural father of a child if (among other things) he and the child’s mother are or have been married to each other, and the child is born during the marriage. That presumption may be “rebutted,” and another man may be deemed the father. The interplay of California’s laws relating to matters of marriage, divorce, and questions of paternity is complicated and can affect many serious issues such as child support and other related factors. If you are facing a divorce or questions concerning paternity, you are encouraged to contact an experienced San Diego family law attorney who can help to protect your rights.

The law allows for an “interested party” to bring an action at any time to determine the existence or nonexistence of a parental relationship. In a recent case, the trial court ruled that the mother’s petition to establish a relationship between her son and a man other than her husband (referred herein as “P”) was untimely filed. Here, the mother separated from her husband, who lives in the Philippines, in 2006. In February 2008, she began a relationship with a married man. Later that year, in November, the mother gave birth to “H.” Interestingly enough, her husband’s name was listed on the birth certificate and baptismal invitations as the child’s father. Despite this, while the other man established and maintained a relationship with H since he was born, he never publicly or openly acknowledged that H was his son and ended the relationship with the child when the couple stopped seeing one another.

In July 2011, when the couple’s relationship ended, the mom filed a paternity action to establish a relationship between H and P, seeking not only a declaration that P was H’s father but also child support. P denied that he was the father and asked the court to declare that her husband, whom she never divorced, was H’s presumed father. Even though the trial court ruled that the Code’s conclusive presumption did not apply because the husband was not living with the mom when the child was conceived or born, it refused to order genetic testing under that section of the statute. Further, the trial court characterized the mom’s action as an effort to establish the non-existence of a parent relationship between her husband and H, and ruled that it was untimely because it was not brought within a “reasonable time” under the law.
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hand-in-hand-1350860-m.jpgIt is important to establish paternity or “parentage” of a child for many reasons. For instance, paternity entitles a child to assorted rights and privileges that most people take for granted, such as knowing who your parents are, and having access to family medical records as well as financial support. Under California law, proof of paternity is required before a court will order custody, visitation or child support. The law identifies circumstances under which a person, who was not married to the mother at the time of conception or birth of the child, can establish paternity. People who are confronting child custody and/or related paternity issues are encouraged to contact a local San Diego family law attorney with experience handling such matters.

Establishing paternity becomes even more complicated when there is a sperm donor involved. In a widely publicized case, Jason Patric filed a petition in a California court to establish a parental relationship with Gus, a child born to a woman named Danielle in 2009. Danielle opposed his motion, claiming that Jason was a sperm donor under the state family code and therefore, not the child’s natural father as a matter of law. Jason responded by arguing (among other things) that he was not a sperm donor within the meaning of section 7613(b) and that he is the “presumed parent” under 7611(d).

The couple never married but lived together for many years. Jason provided sperm (at a licensed fertility clinic) for Danielle to use in an in-vitro fertilization procedure, through which she conceived Gus. During the trial, the parties agreed to the following facts: Jason is not named on Gus’ birth certificate, there is no voluntary declaration of paternity and Gus has no other presumed, natural or possible biological father. Jason maintained a relationship with Gus until Danielle ended her relationship with Jason in 2012. At the end of trial, the court granted Danielle’s motion for nonsuit, finding that section 7613(b) applied to the matter, precluding Jason from proving paternity under section 7611(d).
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bonding-992545-m.jpgWhen a child is born to unwed parents, the importance of establishing paternity (or parentage) cannot be overstated: the child’s welfare could hang in the balance. In fact, before a California court will render an order regarding custody, visitation or child support, parentage must be established. A variety of complicated issues can arise with respect to paternity and child custody arrangements. If you are facing a child custody dispute of any kind, it is important to contact an experienced family law attorney who can help to protect your rights. A local attorney will best be able to guide you through the local family court process in San Diego.

A recent case illustrates some of the complications that can occur when more than one person claims to be a child’s father. In In Re Jovanni B., two men claimed to be the father of a boy born in June 2012. John B. was living with the child’s mother when he was born, and signed a voluntary declaration of paternity. The court got involved when the Los Angeles County Department of Children and Family Services (the “DCFS”) filed a juvenile dependency petition, asserting jurisdiction over Jovanni B, arguing that the mother and John B. had a history of violent disputes in the presence of the child. During interviews with a social worker, the mother admitted that another man, Brian H., was Jovanni B.’s biological father.

The juvenile court did the following: 1) ordered the child to be released to the mother, 2) ordered Brian H. to take a DNA test (which confirmed that he was the baby’s biological father) and, 3) denied John B. visitation and granted Brian H. monitored visits. Upon receiving the DNA test results, the juvenile court dismissed John B. from the proceedings and offered “reunification services” to Brian H. John B. appealed, claiming that he should be entitled to “presumed father” status because he signed the voluntary declaration of paternity. Under Section 7573 of California’s Family Code, the voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support.
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dna-1-1010760-m.jpgIn California, if a couple is not married at the time that their child is born, they will need to establish “parentage” or paternity through a legal process. The laws applicable to paternity are set up to protect the child’s best interests and needs, both emotional and financial. Specifically, one must establish parentage before a court will address and rule on any matters concerning custody, visitation, or child support. Parents confronting child custody disputes, including cases that involve questions of parentage, are encouraged to contact a San Diego family law attorney who can competently and efficiently navigate the local court system’s rules and procedures in a timely manner.

In a recent court of appeals case, a man claiming to be the child’s father lost his petition for paternity because, among other things, he filed parentage documents after the statute of limitations had expired. In Adrian V. v. Stephanie C., et al., plaintiff Adrian filed a petition to establish a parental relationship with N., contending that he was her father, and sought custody and support orders. Defendant, mother, opposed the petition, arguing that Adrian was not the father and she simultaneously requested an order declaring that another man, Andy, was N.’s father. She submitted the child’s birth certificate that identified Andy as the father.

The court ordered Stephanie to provide Adrian with Andy’s Voluntary Declaration of Paternity (which was executed in 2007). In response, Adrian asked the court to order DNA Testing and to vacate the paternity declaration. Both sides provided testimony supporting their relative positions. Stephanie admited to not knowing for certain who the biological father was, but “suspect[s] that it is Andy” because of his resemblance to the child. Further, Stephanie argued that the motion for DNA testing was untimely under Family Code Section 7575 and should not be granted. Adrian argued that the statute allows the court to exercise its discretion and grant the motion, even if it was filed too late.
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flying-on-the-wings-of-love-5-1157970-m.jpgIn San Diego and throughout the State of California, the structure of the family unit has undergone a variety of changes over the years. And in many ways, as family dynamics change, the law has been evolving to protect the interests and rights of the children involved. According to an article in the Los Angeles Times, Governor Jerry Brown recently signed a Bill that will allow children to have more than two legal parents. There are many rights and responsibilities that come with the designation of “legal parent,” such as child custody and visitation, child support and other related matters. Anyone who is confronting a child custody issue or dispute is encouraged to contact a local family law attorney to help protect parental rights and preserve the best interests of the children.

Senator Mark Leno (D-San Francisco), who authored the Bill, argues that the legislation was necessary to address the changing complexion of the family, including situations in which same-sex couples have children with an opposite-sex biological parent. We recently addressed this topic in a blog post covering the State Assembly’s passage of the Bill, before it went on to the Senate. Under the new law, courts will be permitted to recognize more than two legal parents, making it possible for financial obligations and custody to be shared by everyone involved in raising the child.

Opponents of the Bill, including advocates for traditional families, say that the new legislative measure is a mistake. One argument stresses that having more than two legal parents will create the potential for more conflict over what is best for a child and result in more complicated disputes in court. Interestingly enough, the Governor vetoed a similar bill last year. So far, there has been no explanation as to why he signed the legislation this time around.
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happy-family-1389105-m.jpgAccording to an article in the U-T San Diego, California could become the fifth state in the country to allow a judge to declare that a child has more than two legal parents. Under the current law, courts are permitted to recognize a maximum of two people as a child’s parents. Establishing parentage and child custody rights are complicated matters. There are many legal principles to consider as well as the needs of the family. An experienced family law attorney can help parents sort through the process to achieve a desirable arrangement for your situation.

Senator Mark Leno, from San Francisco, introduced S.B. 274 in February of this year. The bill would amend the state Family Code to allow a court to find that a child may have a “parent-child” relationship with more than two parents. The legislation specifically includes qualifying language limiting the court’s authority. For example, a court could find that more than two people who are claiming parentage — are parents — where it would be detrimental to the child to find otherwise.

It has been reported that the bill was inspired by a California court case involving a girl whose legal parent could not care for her and whose biological father was deemed not a parent. Unfortunately, the child was placed in state custody because one legal parent was hospitalized and her birth mother had become incarcerated. Under the proposed legislation, the court would be required to look at a variety of relevant factors before making the determination as to parentage. Some of the factors include, but are not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.
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1174492_silhouette.jpgThe complexion and genesis of the “family unit” are evolving with each passing year. And breakthroughs in medical science as well as a growing acceptance of these changes have altered the way we perceive the modern family. But the state of the law in San Diego and throughout California has not kept pace with the times and the cultural and social changes taking place. Non-traditional families sometimes face more difficult issues when it comes to divorce, custody and visitation matters. If you are confronted with a child custody matter, it is important to contact a local family law attorney who can help you to protect and advance your rights.

In a recent article appearing in the Fresno Bee, apparently the actor Jason Patric is hoping to change state law to allow sperm donors, under certain circumstances, to become legal parents and share custody of children that result from the donation of their sperm. In response to Patric’s efforts, his former girlfriend is fighting the bill, asserting that the current law protects her as the child’s only legal parent since she never married Patric and utilized a medical procedure to conceive her child.

At the heart of this dispute is Senate Bill 115. The bill would allow a man whose donated sperm impregnates an unmarried woman to petition the courts for parenting rights by establishing his devotion to the child. According to an article in the Huffington Post, the primary intent of the bill is to permit a limited category of fathers to have “parentage” rights to children who they have brought into their homes and held them out as their own. The bill passed the Senate without one oppositional vote. It is currently in the Assembly attracting some controversy.

In many states, the Uniform Parentage Act (the “Act”) governs the determination of parentage of children who are born of unmarried parents. Under the Act, if a man provides his sperm to a licensed physician, with the intent of inseminating an unmarried woman, that man will be legally barred from asserting parentage of the child who results therefrom. SB 115 would not permit any and all sperm donors to assert parentage rights. To the contrary, only those donors who have a relationship with the child are afforded rights under the proposed law. Further, according to the above-referenced Huffington Post article, the only way that these men may establish such a relationship is with the consent of the biological mother. If the bill passes, the mother would be prohibited from terminating – on a whim — the father-child relationship so long as that child was conceived via fertility procedures conducted by a licensed physician.

The current laws are fairly complicated, enabling a man who is not the biological father of the child to establish parentage, but denying the sperm donor the opportunity to do so. With this in mind, anyone with a custody question or dispute with another parent is encouraged to reach out to a local family law attorney who is well-versed in the local rules and court procedures.
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