Family Code Section 7570 codifies the public policies behind the establishment of paternity. That section declares that through the establishment of paternity, children are provided with equal rights and access to benefits, including social security, health insurance, survivors' benefits, military benefits, and inheritance rights. Further, knowledge of family medical history is often necessary for correct medical diagnosis and treatment. Finally, and often most important, knowing one's father is important to a child's development.
Child Born During Marriage
Family Code Section 7540 sets forth the most basic presumption of paternity. That statue presumes, conclusively, that any child born during a marriage when husband and wife are cohabitating, and husband is not impotent or sterile, is a child of that marriage. The sole exception to the conclusive and binding presumption of paternity in Family Code Section 7540 is found in section 7541. Section 7541 provides that if Court-ordered genetic testing is requested within two years of the child's birth, and the result shows that husband is not the father, then paternity shall be established "accordingly." Unfortunately, section 7541 operates to the detriment of many Family Law litigants. By imposing bright line rules that genetic testing must (1) be pursuant to a Court Order to be valid and (2) must be requested within two years of the child's birth, many litigants fail to take appropriate action within the allotted time limitations. If either parent fails to meet these deadlines, the father is out of legal options and will shoulder the burden of supporting a child that is not biologically his.
Declaration of Paternity
Family Code Section 7570 provides the second easiest way for a Court to establish paternity. If a man executes a "voluntary declaration of paternity" on a state-prescribed form, paternity is conclusively established against that man, unless: (1) a rescission of the declaration of paternity is filed with the State Department of child support services within sixty days and no formal custody/visitation Orders have been issued, or (2) a Court grants a set-aside of the declaration of paternity based on genetic testing completed within two years of the child's birth. In most cases, a voluntary declaration of paternity is signed contemporaneously with the child's birth at the hospital.
Alternative Methods to Establish Paternity
When Family Code Sections 7540 and 7570 do not apply, the Family Code sets forth various presumptions to guide our judiciary in the establishment of paternity. Section 7611(a) presumes paternity in favor of husband when a child is born within 300 days of a termination of marriage between husband and wife. Section 7611(b) presumes paternity when, prior to the birth of the child, man and woman attempt to marry and but for some legal or procedural impediment, the marriage does not occur or is invalid and the child is thereafter born within 300 days of the termination or marriage or cohabitation of the parties. Section 7611(c) presumes paternity when, after the birth of a child, , man and woman attempt to marry and but for some legal or procedural impediment, the marriage does not occur and either the man issues a written promise to support the child or consents to the placement of his name on the child's birth certificate. Section 7611(d) presumes paternity when a man openly holds a child out to be his own and receives the child into his home. Family Code Section 7611(d) has been a constant hotbed of litigation. Appellate cases have construed Section 7611(d) to allow a Court to find that although a man is proven, by genetic testing, not to be the biological father of a child, that he is still the child's "father" for all purposes because he held that child out to be his own. In the trial Court, the issue often to be decided is whether a man has "held a child to be his own." In some cases, a man will be fighting for that presumption and in other cases, against it. In either circumstance, the proof to be submitted to the Court is often conflicting.
The information and opinions expressed above are not intended to be relied upon as legal advice, or to establish an attorney/client relationship. If you are involved in a Family Law matter, you should seek competent counsel.
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