San Diego Divorce Lawyer Blog
One way to establish legal paternity in San Diego is for the parents to sign a Declaration of Paternity. This form is available at most hospitals and birthing clinics as well as prenatal clinics, welfare offices, county offices and courts. This is not necessary if the parties were married at time of birth or conception. Another method is to file a Complaint to Establish a Paternal Relationship in San Diego Superior Court. Filing the Complaint is opening a case and then filing a motion for custody and visitation called a “Request for Order” or RFO. This was changed in 2012 as prior the motion for custody and visitation was called an “Order to Show Cause” or OSC. The forms and procedures have changed and it is crucial to use the most current forms when filing and making sure that all is complete and in accord with the California Family Law Code as well as the San Diego Local Rules.
Having both parents named on the birth certificate is important for the child. It assures the child will be provided with
-Adequate financial support from both parents.
-Family medical history information.
-Health and life insurance benefits.
-Social Security or Veteran’s benefits.
-Inheritance rights in the event of a parent’s death.
Without a determination of paternity, either through the Declaration of Paternity or court-ordered DNA testing, a father has no rights to a child born outside of marriage. Once paternity is established, a father has all legal rights to custody and visitation the same as if the parties were married. He has the right to participate in parental decisions. If a father is awarded physical custody, the mother may be required to contribute to the financial support of the child, and will have visitation rights. The law in San Diego specifically states under the California Family Law Code that a Judge will not make a decision based on gender.
Signing the voluntary Declaration of Paternity eliminates the need for DNA testing. Some men sign a Declaration of Paternity even though they know the child isn’t theirs. They may mistakenly believe they can avoid responsibility for child support payments by either rescinding the Declaration of Paternity or demanding a DNA test if the relationship ends at a later date. The law is very clear and strict when it comes to setting aside a voluntary Declaration of Paternity or a finding of Paternity by another Court such as the San Diego Department of Child and Social Services [DCSS]. It is not advisable to sign the voluntary declaration of paternity or agree to paternity without a DNA test due to the long term consequences.
Even if later DNA testing conclusively proves the child isn’t yours biologically, San Diego courts may determine parentage as being “de facto”. If a man has acknowledged a child as his own and openly treated the child as his own, the “best interest of the child” rule may lead the court to find that the established parental relationship is best for the child even if the finding is unfair for the father. This is both a procedural and fact bases analysis.
Other men sign the Declaration of Paternity even though they are unsure if the child is theirs. You can perform a home paternity test to determine the facts. Home testing kits are available online for a minimal charge given the consequences of not taking the test. While these home test results will not be admissible in court, they can help you avoid making a bad decision. It may be better to learn an unpleasant fact than to spend years living with doubts that can have a negative effect on your future life.
It may be beneficial to consult a San Diego divorce attorney about paternity issues. Contact us online or call our office at 858-312-8500 for a free initial consultation.