Paternity

Overview

When parties have children but have never been married, they have a paternity action under California law. Paternity cases are unique from divorces in that the issues are limited to child custody, visitation, and child support. For the sake of your child or children, it is essential to reach a swift and speedy resolution to any issues involving them. An attorney with a strong hand is needed to guide you through this process in order to end the conflict as quickly as possible. At the same time, because children are the focus of a paternity case, a good deal of compassion and sensitivity is also required.

Each county has a different approach to mediation, which is required under California law before a Court can enter orders regarding custody and/or visitation. As our attorneys solely practice family law in the Bay Area, we are very familiar with each county’s mediation process and can prepare you for the process, ensuring that you are able to effectively communicate your child(ren)’s needs and wants to the mediator.

Additionally, child support is another key issue in paternity cases. All children need support from both parents, financially and emotionally. We will ensure that the proper amount of child support is established and that both parents are contributing to the support of their child(ren).

For a consultation, please e-mail or contact us at (925) 215-1388.

FAQ

Q: What type of case is it if I was never married to the other parent?

A: These cases are commonly referred to as “paternity” cases. If parents are married at the time their child is born, the law presumes the couple to be the child’s parents. If the parents were not married when the child was born, they become the child’s legal parents by “establishing paternity.”

Q: How do I establish who the father of my child is? How do I prove that I am the father of my child?

A: Parentage of a child can be established in one of three ways: 1) the father signs a Voluntary Declaration of Paternity (commonly referred to as a “Pop Dec”); 2) through the local child support agency; or 3) by one parent going to Court and requesting that parentage be established.

Q: I heard that if we fight over custody or visitation of our children, we will have to go to mediation. What is that?

A: Mediation, which has now been renamed to “Child Custody Recommending Services,” is required if there is a custody or visitation dispute between parents. This process is intended to be positive and of benefit to parents. Rather than relying on a judge to make a decision regarding your children, the mediation process tries to empower parents to determine what is best for their children.

Q: I have heard that there are different kinds of child custody. What are they?

A: There are two types of custody, legal and physical. Legal custody relates to which parent has the right to make decisions about issues such as education, school, and medical care.

Physical custody determines which parent has the right to physically have the children with him or her, absent the other parent’s right of visitation.

Custody awards are usually expressed in terms of joint and sole. Joint custody means that both parents share in the rights associated with the particular form of custody, sole custody means one parent has the rights.

Q: I have heard that the courts are really backed up. What if I need help now?

A: It usually takes about two months before you can see a judge, but with the current California budget cuts, it may take up to four months.

There is a process called an “ex parte request” that allows you to receive a Court date much faster if the judge determines that there is an emergency. Usually these emergencies relate to minor children. For example, if one parent moved out of state and took the children with them, a judge is likely to want to hear your case sooner rather than later.

Q: If I have a criminal conviction, can I still get custody of our children?

A: It is possible to still share custody of your children with the other parent even if you have a criminal background, but if you have been convicted of domestic violence or are a registered sex offender, it will be much more difficult to share custody.

Forms

All actions to establish paternity begin with three required forms:

  1. Petition to Establish Parental Relationship (FL-200). This form is a request to formally name the other party as your child(ren)’s parent. It’s extremely important because it outlines what the major issues are and what orders you are asking for with regards to your child(ren).
  2. Summons (FL-210). This provides notice to the other party that you are requesting that his or her paternity be established. It advises the person that he or she must respond to your request for a divorce within 30 days and places certain restrictions on both you and the other side.
  3. Declaration Under Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) (FL-105). This establishes your child(ren)’s residency for the past five years.

After filing for paternity, the next step is serving the other party. The other side must be personally served the documents by any adult other than you. After serving the initial paperwork, you must file a proof of service with the Court. FL-115 or FL-330. If the other parent is cooperating with the process, you can also ask him or her to sign a Notice and Acknowledgment of Receipt, which meets the service requirements.

If you are responding after being served with paternity papers, you need to file a Response (FL-220), which allows to the Court to see your side of the story, as well as your own Declaration Under Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA).

If you need some sort of orders prior to entering a judgment of paternity, you can file a motion with the Court regarding any family law issue from child support to custody to attorney fees. All motions required two forms:

  1. Order to Show Cause (FL-300) or Notice of Motion (FL-301). If this is your first time appearing in front of a judge, you need to file FL-300. If you have already appeared in front of a judge in your paternity case, you can file either an Order to Show Cause or a Notice of Motion. This form tells the Court what orders you are requesting.
  2. Application for Order and Supporting Declaration (FL-310). This form must be attached to either an Order to Show Cause or Notice of Motion and provides an explanation to the Court of why you are requesting particular orders.

Statutes

3011. In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:

  • (a) The health, safety, and welfare of the child.
  • (b) Any history of abuse by one parent or any other person seeking custody against any of the following:
    • (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
    • (2) The other parent.
    • (3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

    As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, “abuse against a child” means “child abuse” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means “abuse” as defined in Section 6203 of this code.

  • (c) The nature and amount of contact with both parents, except as provided in Section 3046.
  • (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
  • (e)
    • (1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.
    • (2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.

3020.

  • (a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
  • (b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.

3040.

  • (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
  • (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

3042.

  • (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.

3044.

  • (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.

6203. For purposes of this act, “abuse” means any of the following:

  • (a) Intentionally or recklessly to cause or attempt to cause bodily injury.
  • (b) Sexual assault.
  • (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.
  • (d)To engage in any behavior that has been or could be enjoined pursuant to Section 6320.

6320.

  • (a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.
  • (b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.