Skip to main content

Mutually choosing to have and co-parent a child as an unmarried couple is a choice many people are happily making.  However, even is cases where a couple agrees to co-parent, paternity may play an important role in ensuring that the actual goal of co-parenting is achieved with ease, respect, and success.

Failure to establish paternity could result in a father being denied a right to custody or visitation; or, in the alternative, deny a mother the right to receive child support.

Under California law when both unmarried parents sign a “Voluntary Declaration of Paternity” they are declaring that they are the legal parents of the child.  Once a “Voluntary Declaration of Paternity” is signed each parent has an equal responsibility to support the child and an equal right to custody of the child.  A declaration of paternity not only ensures for each parent rights to custody, visitation, and support, but it also protects the rights of the child to obtain benefits through the father including social security, military, or survivors benefits.

However,  a “Voluntary Declaration of Paternity” may be difficult or impossible to reverse, so it is important that it not be signed if there is a dispute over paternity.

The Paternity Lawsuit

If the parents of a child born outside of marriage do not sign a “Voluntary Declaration of Paternity,” or if parentage is in dispute, the parent who wants a confirmation of identity can file a court action. Ultimately, the court can order that all parties – parents and child – submit to a DNA blood test to resolve the issue.

The Complexity of Paternity Cases in California

The Case of Tate v. Wilburn

The California case of Tate v. Wilburn is interesting because it illustrates the far reaching effects of failing to follow certain procedures when challenging a claim of paternity.  In the Tate v. Wilburn case, the California Court of Appeal upheld a decision that ordered a homeless man to pay child support from his inheritance. In the Tate case, Hari Wilburn was named as the father of Cathy Tate’s daughter, Alexis, in a court proceeding during which Wilburn was ordered to pay child support.  Seventeen years later, Cathy Tate asked the Court to take money that Hari Wilburn was going to receive through an inheritance to pay the court ordered child support.

The court granted Cathy Tate’s request despite the fact that DNA test excluded Hari Wilburn as being Alexis’ father and had never established a father child relationship.   The court held that under California Family Code 7551, Wilburn waited too long to challenge the court’s finding of paternity.

Clearly, the facts of the Tate case are unique.  However, the facts of any paternity case where the parents fail to sign a “Voluntary Declaration of Paternity” can be just as unique and complicated.

Other Factors to Consider:

Genetic Testing: If there is disagreement about paternity or if one of the parties denies paternity, genetic testing can be requested. In California, the court may order genetic testing if there is a dispute, and DNA tests are highly accurate in determining paternity.

Time Limits: In California, there is no statute of limitations on establishing paternity when a child is under 18 years old. However, after the child turns 18, the legal process becomes more complicated.

Rights and Responsibilities: Once paternity is established, both parents have rights and responsibilities regarding the child. This includes financial support, custody, visitation, and the right to make decisions about the child’s welfare.


••••Minella Law Group Can Help••••

It’s often beneficial for both parents to seek legal assistance when dealing with paternity issues, especially if there is disagreement or if the case involves complex legal matters. It is important to know what your rights are even when both parents of a child are in full agreement about co-parenting outside of marriage.  Also, if you are a parent who wants to establish paternity there are complex steps that need to be undertaken. The experienced family law attorneys at Minella Law Group can help you understand your rights and ensure that you and your child are protected legally and financially.  Please call us at (619) 289-7948 for a consultation.