Paternity

Do I Need a Paternity Attorney?

If you have any doubt the child is actually your biological child, then you MUST take immediate steps to make the determination. In California, after two (2) years, a child may be legally presumed as your child and you will be financially responsible, even if you’re not the biological father.

Mothers often file paternity actions for inheritance purposes, child support, child custody, and visitation orders. The name of parents on the birth certificate does not assure that those named are the legal parents. Only a court can adjudicate who the legal parents are.

At our firm, we represent both mothers and fathers in paternity proceedings throughout California.

What Is Establishing Parentage (Paternity)?

Parentage cases (or paternity cases) are legal proceedings to determine the legal parents of a child. Establishing parentage means obtaining a court order that states who a child’s legal parents are.

In California, there is a legal presumption that the child of a married couple is their child under Cal. Fam. Code § 7540. This conclusive presumption applies when a child is born to a married couple or within 300 days of the husband’s death, divorce, or annulment.

However, for unmarried parents, paternity is NOT automatically established. Without a court order, there is no legally recognized mechanism for unmarried persons to enforce custodial rights, seek child support, or establish visitation.

Multiple Ways to Establish Paternity in California

1. Voluntary Declaration of Paternity (POP)

Many parents sign a Voluntary Declaration of Paternity at the hospital when the child is born. This form can be signed by both parents acknowledging biological fatherhood and is rescindable within 60 days of signing. After 60 days, this can only be challenged in court on grounds of fraud, duress, or material mistake of fact.

Even a signed POP at the hospital does not replace a court judgment. It establishes paternity but custody, visitation, and support still require separate court orders.

2. Court Order / Adjudication

When parents disagree about paternity, or when no voluntary declaration was signed, a petition to establish parental relationship must be filed with the court. The court can:

• Order genetic testing (oral swab DNA test)
• Determine legal parentage based on test results (99% or more genetic match = conclusive)
• Adjudicate a man as legal father even if not biological (parentage by estoppel, best interests of child)

3. Parentage by Estoppel

California courts can order that a non-biological parent be recognized as the legal parent under the doctrine of parentage by estoppel. This applies when:

• The person has held themselves out as the child’s parent
• Has formed a parent-child relationship
• It would be detrimental to the child to sever that relationship

4. Putative Marital Assumption

If a couple attempted to marry before the child was born (even if the marriage was later found invalid), both parties may be considered presumed parents under California law.

5. Artificial Insemination

When a child is conceived through artificial insemination with a sperm donor, the donor is not the legal father if:

• There is written consent from the treating physician and both partners
• The donor signs the required documentation

The intended parents (whether married or unmarried) are the legal parents.

The Paternity Case Process in California

Establishing paternity can feel overwhelming, but having the right legal guidance can make the process far more manageable. At the Law Offices of Alexandra McIntosh, we help clients move through each step with clarity, ensuring their rights and their child’s future are protected from the very beginning.

Step 1: File a Petition to Establish Parental Relationship

The process begins when one parent (or any “interested person” under Family Code § 7650) files a Petition to Establish Parental Relationship with the court. In San Diego County, this is filed with the Superior Court.

The child must have been conceived, born, or artificially inseminated in California. San Diego courts may still have jurisdiction even if the child was conceived/born in another county, depending on how long the child has lived in San Diego.

Step 2: Serve Papers on the Opposing Party

The petition must be formally served on the other parent. This can be done by:

• Professional process server
• Sheriff’s department
• Any adult (18+) who is not a party to the case

Step 3: 30-Day Response Window

After service, the responding parent has 30 days to file a response. If no response is filed within that timeframe, the filing party may Request a Default. The court can then proceed and issue a judgment without the other parent’s participation.

Step 4: DNA Testing (If Paternity is Disputed)

If paternity is disputed, the court may order genetic testing. This typically involves a non-invasive oral swab from the mother, child, and alleged father. Testing is conducted through an accredited laboratory, and a result showing a 99% or greater probability generally establishes paternity.

Step 5: Request for Order (Custody, Visitation, Support)

Once paternity is established, either parent can file a Request for Order to address related issues such as child custody, visitation, child support, and, if appropriate, the child’s legal name.

Step 6: Judgment of Paternity

The court will issue a Judgment of Parentage that legally establishes who the child’s parents are. This judgment is required before custody, visitation, and support orders can be enforced.

Setting Aside a Paternity Judgment

Can a paternity judgment be undone? Yes, but only under limited circumstances.

Under California Family Code § 7646, a paternity judgment can be set aside if:

• You were not properly served with notice of the paternity action.
• DNA testing shows the man is not the biological father.

However, there are strict deadlines and limitations. You must bring a motion to set aside within 2 years of the date you knew or should have known about the judgment.

Best Interests of the Child

Even if DNA proves you’re not the biological father, the court can still deny your motion if setting aside the judgment is not in the best interests of the child (Family Code § 7648).

Factors the court considers:

• Age of the child
• Length of relationship between the man and child
• Bond the child has with the man
• Benefit or detriment to the child if parentage is changed
• Child’s sense of identity as the man’s child

This is a complex area of law. If you are looking to set aside a paternity judgement, contact an experienced paternity attorney. Contact the Law Offices of Alexandra McIntosh today for more information.

Who Can File a Paternity Action?

Any “interested person” can petition to establish parentage under Family Code § 7650, including:

• The mother (often files for child support, custody, inheritance purposes)
• The alleged father (to establish or disprove parentage)
• The child (through a guardian ad litem)
• The Department of Child Support Services (DCSS) (when child support is involved)
• Other interested persons (grandparents, relatives in certain circumstances)

Contact a Trusted Paternity Attorney Today

Paternity issues are complex and emotionally charged. Whether you’re a mother seeking child support and custody, a father wanting to establish or disprove parentage, or someone facing a paternity judgment you want to challenge, you need experienced legal counsel.

Don’t wait, the 2-year clock may already be ticking. Contact us today to speak with a San Diego paternity lawyer about your case.

Paternity FAQ

What is the difference between paternity and parentage?

“Paternity” and “parentage” are used interchangeably in California. Both refer to the legal relationship between a father and his child and the determination of who the legal parents are.

Is paternity established if the father is listed on the birth certificate?

No. Being listed on the birth certificate alone does not make someone the legal parent. Only a court can “adjudicate” who the legal parents are through a judgment of parentage.

Can I request custody and visitation in a paternity case?

Yes. Once paternity is established, either parent can file a Request for Order to establish custody, visitation, and support orders. Until these orders are entered, there is no legally recognized mechanism for unmarried persons to enforce custodial rights.

How accurate is DNA testing for paternity?

DNA testing via oral swab is 99% or more accurate and is considered conclusive for establishing paternity in California courts.

Can I set aside a paternity judgment if I’m not the biological father?

Yes, but only under limited circumstances. You must file within 2 years of learning about the judgment, and the court can still deny the motion if it’s not in the best interests of the child (considering the child’s age, bond with the man, and other factors).

Who pays for paternity testing?

The court typically orders the parties to share the cost of genetic testing, though fees may be waived for those who qualify financially.

Can pregnancy and childbirth costs be reimbursed?

Yes. The father may be required to reimburse half of the necessary pregnancy and childbirth costs, even if paternity is established later.

Do both parents have to agree to establish paternity?

No. Either parent (or any interested person) can file a petition. If there’s disagreement, the court can order DNA testing and make a determination.