Paternity (or Parentage)
Paternity (or parentage) is the courts’ determination of who is the father (or mother) of the child in a dependency court case. In California, “paternity” is used interchangeably with “parentage” or “parental relationship.”
When a child is born to married parents, the law presumes that the mother’s husband is the father of the child. However, when a child is born to unmarried parents, these fathers may still have legal rights and roles in raising their children. Unwed fathers may be alleged, biological, presumed, reputed, or putative fathers based on their particular circumstances. What makes paternity confusing is that biology is not determinative. A man that has biological paternity established may not yet have achieved “presumed father” status.
Even if a man is not the biological father, he can be considered the "presumed father" which means that he has all of the legal rights to and legal responsibilities for the child.
“Presumed fatherhood, for purposes of dependency proceedings, denotes one who ‘promptly comes forward and demonstrates a full commitment to . . . paternal responsibilities—emotional, financial, and otherwise[.]’” In re Jerry P., 95 Cal.App.4th at pp. 801-802.
A natural father can be a presumed father, but is not necessarily one; and a presumed father can be a natural father, but is not necessarily one. An alleged father may be the father of a dependent child. However, he has not yet been established to be the child’s natural or presumed father. In re Jerry P., supra, 95 Cal.App.4th at p. 801. These types of fathers are explained more in the Types of Fathers in Dependency Cases section below.p
Establishing Paternity Early in the Case is Important
“There is a compelling state interest in establishing paternity for all children… Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to, social security, health insurance, survivors’ benefits, military benefits, and inheritance rights. Knowledge of family medical history is often necessary for correct diagnosis and treatment. Additionally, knowing one’s father is important to a child’s development.” Family Code § 7570(a)
“The Legislature has . . . made perfectly clear that public policy (and, we might add, common sense) favors, whenever possible, the establishment of legal parenthood with the concomitant responsibilities.” Marriage of Buzzanca (1998) 61 Cal.App.4th at p. 1423.
Indian Child Welfare Act (ICWA)
It is imperative that everyone - attorneys, social workers, the court - ask whether a foster child may have Indian heritage at the very beginning of a dependency case. If ICWA is not followed the case may be overturned or invalidated at any stage, including post finalization of an adoption. Please see our ICWA page for more information.
When Shall the Court Inquire about Paternity?
At the Initial / Detention Hearing (and all subsequent hearings), the court has a duty to inquire until parentage is established. Welfare and Institutions Code section 316.2 sets forth a list of specific questions the court must ask concerning parentage, which include but are not limited to:
- Has there been a court decision, or judgment, of parentage?
- Was the mother married?
- Did the mother believe she was married?
- Was the mother living with another man at the time of conception?
- Has the mother received support payments or promises of support for the child?
- Has a man formally or informally acknowledged paternity, including a voluntary declaration of paternity or had his name placed on the child's birth certificate?
- Have there been paternity genetic tests or blood tests?
- Has the child been raised jointly with another adult?
Please note that California Rule of Court 5.635(b) recognizes that a parentage case may involve same-sex parents. For more information see section on Lesbian Domestic Partners and Spouses below.
If parentage (or paternity) is an issue in the case, meaning that it is not yet clear who the legal father of the child is, the court must send a JV-500 to the child support agency inquiring if there is a judgment of paternity or a voluntary declaration of paternity ("VDP") on file. Welfare and Insitutions Code § 316.2(a); California Rule of Court 5.635(a),(d)
Early identification of fathers is essential for the child. If parentage is not established, an unidentified father may later file a section 388 petition to seek custody, thus delaying permanency for the child. The child’s counsel has a duty to protect the child’s interests, including ensuring that paternity is established as soon as possible.
Voluntary Declaration of Paternity (VDOP)
With some exceptions* a man can complete a voluntary declaration of paternity ("VDP") and file it with the Department of Child Support and Social Services. This voluntary declaration of paternity has the same force and effect as a judgment for paternity issued by a court of competent jurisdiction and must be recognized as a basis for a court order of child custody, visitation, or child support.
Family Code § 7573
In other words, a voluntary declaration of paternity is sufficient to create a presumed father. In re Raphael P. (2002) 97 Cal.App.4th 716, 737-738. Further, A California court must recognize a declaration of paternity from another state under the equal protection and the full faith and credit clauses of the federal Constitution. In re Mary G. (2007) 151 Cal.App.4th 184, 198-203.
Types of Fathers in Dependency Cases
There are six types of “fathers” in dependency cases.
- Presumed (legal) father
- Kelsey S. Father
- Biological Father
- Adjudicated Father
- Alleged Father
- Equitable Father
1. Presumed Fathers
“Presumed father” refers to an individual whom the law presumes, until shown otherwise, to be the legal father of a child. Presumed father - legal father - the man with the rights and responsibilities of a father, even if not a biological father.
Section 7611 of the Family Code outlines the definitions of a presumed father. The relevant excerpts from Section 7611 of the Family Code are as follows:
- The presumed parent and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.
- Before the child's birth, the presumed parent and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and any of the following is true:
- If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.
- If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.
- With his or her consent, the presumed parent is named as the child's parent on the child's birth certificate.
- The presumed parent is obligated to support the child under a written voluntary promise or by court order.
- The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.
- The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.
The complete section 7611 of the Family Code is available here.
Presumed fathers are entitled to family reunification services, if they request placement or custody of the child.
Welfare and Institutions Code § 361.5(a)
A child may have more than one presumed father. In such cases, the court is usually required to weight the competing claims and decide which claimant should be recognized as the legal parent. Family Code §7612(b) [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=07001-08000&file=7610-7614]. The court may recognize more than two legal parents if recognizing only two parents would be detrimental to the child.
Family Code § 7612(c).
2. Kelsey S. Fathers
This type of father is named after a case in which an unwed, biological father immediately came forward and demonstrated a full commitment to his parental responsibilities – emotional, financial and otherwise but was blocked by the mother, the court and the prospective adoptive parents from assuming these responsibilities. Adoption of Kelsey S. (1992) 1 Cal.4th 816.
In order to be a “Kelsey S. Father” there must be:
- the biological father
- some action by the mother or a third party that prevented the father from receiving the child into his home or assuming responsibilities sooner
- prompt action to assert the relationship and assume parental responsibilities once the father knows or should have known of the existence of the child.
In re Hunter W. (2011) 200 Cal. App.4th 1454.
Kelsey S. fathers are entitled to reunification services. They also have constitutional protection and due process rights in dependency proceedings. Welfare and Institutions Code § 361.5(a)
3. Biological Fathers
A biological father is a father who is genetically the father of the child but who has failed to take any steps to become a presumed father. Michael U. v. Jamie B. (1985) 39 Cal.3d 787. If biological fathers appear promptly after notice of the dependency case, then they have the right to develop a relationship with the child. In re Julia U. (1998) 64 Cal. App.4th 532. When a father wishes to assert his paternity post termination of reunification services, he must file a Section 388 Petition and must show that his paternity would be in the child’s best interest. In re Vincent M. (2008) 161 Cal.App.4th 943.
A biological father may be granted family reunification services (but is not necessarily entitled to them) if, and only if, he can persuade the court that reunification services will be in the best interests of the child. In re Vincent (2008) 161 Cal.App.4th 943. However, it is improper for the court to order services for a biological father if there is already a presumed father that is seeking reunification services. In re Elijah (2005) 127 Cal.App.4th 576.
Welfare and Institutions § 361.5(a)
4. Adjudicated Fathers
An adjudicated father is a man that has an existing judicial determination that a parent-child relationship exists. A paternity judgment does not establish presumed father status because it is not listed as one of the ways a man may become a presumed father in Family Code section 7611, but it may rebut a presumption of paternity in favor of another man.
Welfare and Institutions § 361.5(a)
Similar to a biological father, an adjudicated father may be granted family reunification services (but is not necessarily entitled to them) if he can persuade the court that reunification services will be in the best interests of the child.
5. Alleged Fathers
An alleged father is a man who may be the father of the child, but whose biological paternity has not been established, or who has not achieved presumed father status. Welfare and Institutions Code § 290.1; Family Code §§ 7630
All alleged fathers have the right to receive notice of the dependency case. Alleged fathers also have the right to appear before the court and assert an interest in the child by filing a Uniform Parentage Action (UPA) and JV-505 form. An alleged father is not a party to the case until he has appeared before the court. In re. Joseph G. (2000) 83 Cal.App4th 712. Alleged fathers do not have a right to custody.
6. Equitable Fathers
An equitable father is a non-biological father who attempts to take responsibility for the child but was prevented from doing so by the mother or a third party. In re Jerry P. (2002) 95 CA4th 793. In the In re Jerry P. case, the father supported the mother through her pregnancy and visited the baby every day while it was in the hospital. The baby was abandoned by the mother, and CPS prohibited him from bringing the baby home. He appeared at every hearing, sought presumed father status, took parenting and CPR classes. On appeal, he was determined by the court to be an “equitable father”. He did all the things that the Kelsey S. case required a biological father to do despite not having biological father status, and he had an existing familial relationship with the child. He demonstrated a loving, nurturing parental relationship with a child, when through no fault of his own he was not able to physically bring the child into his home because he was prevented from doing so by a third party.
In general, a woman who gives birth with the intention to raise the child is conclusively the presumed mother even if she later abandons the child. In re. D.S. (2012) 207 Cal.App.4th 1088. However, where the natural mother is dead, a woman may achieve presumed mother status when she is able to demonstrate that she has held the child out as her own child and accepted the child into her home. See In re Salvador M. (2003) 111 Cal.App.4th 1353.
Gay and Lesbian Domestic Partners and Spouses
The Uniform Parentage Act (UPA) provides that the parentage of a child does not depend upon the marital status of parents.
Family Code § 7611(d)
The UPA also does not preclude a child from having two parents, both of whom are women. Elisa B. v. Superior Court (2005) 37 Cal.4th 108. In Elisa B., the non-biological mother was found to be a parent because she received the children into her home and openly held them out as her natural children.
Parents who agree to procreate together, by whatever means, are the parents of the child because they chose to bring the child into being. Further, such people are likely to have the child’s best interests at heart. Marriage of Buzzanca (1998) 61 Cal.App.4th 1410.
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