Location: CA

When a birth certificate reflects the name of a father who has been voluntarily uninvolved since birth and in excess of ten years, and owes approximately $100,000 in child support arrears, what is the likelihood of a judge mandating a DNA test requested in response to a request to establish parentage seeking joint custody by the absent father?

Note: Mother did not seek to establish support order; rather the Child Support Division established the order as a result of mother being a public-aid recipient.

7573. Except as provided in Sections 7575, 7576, and 7577, a
Completed voluntary declaration of paternity, as described in Section
7574, that has been filed with the Department of Child Support
Services shall establish the paternity of a child and shall have the
Same force and effect as a judgment for paternity issued by a court
Of competent jurisdiction. The voluntary declaration of paternity
Shall be recognized as a basis for the establishment of an order for
Child custody, visitation, or child support.
7575. (a) Either parent may rescind the voluntary declaration of
Paternity by filing a rescission form with the Department of Child
Support Services within 60 days of the date of execution of the
Declaration by the attesting father or attesting mother, whichever
Signature is later, unless a court order for custody, visitation, or
Child support has been entered in an action in which the signatory
Seeking to rescind was a party.'
(b) (1) Notwithstanding Section 7573, if the court finds that the
Conclusions of all of the experts based upon the results of the
Genetic tests performed pursuant to Chapter 2 (commencing with
Section 7550) are that the man who signed the voluntary declaration
Is not the father of the child, the court may set aside the voluntary
Declaration of paternity unless the court determines that denial of
The action to set aside the voluntary declaration of paternity is in
The best interest of the child, after consideration of all of the
Following factors:
(A) The age of the child.
(B) The length of time since the execution of the voluntary
Declaration of paternity by the man who signed the voluntary
Declaration.
(C) The nature, duration, and quality of any relationship between
The man who signed the voluntary declaration and the child, including
The duration and frequency of any times during which the
Child and the man who signed the voluntary declaration resided in the
Same household or enjoyed a parent-child relationship.
(D) The request of the man who signed the voluntary declaration
That the parent-child relationship continue.
(E) Notice by the biological father of the child that he does not
Oppose preservation of the relationship between the man who signed
The voluntary declaration and the child.
(F) The benefit or detriment to the child in establishing the
Biological parentage of the child.
(G) Whether the conduct of the man who signed the voluntary
Declaration has impaired the ability to ascertain the identity of, or
Get support from, the biological father.
(H) Additional factors deemed by the court to be relevant to its
Determination of the best interest of the child.
(2) If the court denies the action, the court shall state on the
Record the basis for the denial of the action and any supporting
Facts.
(3) (A) The notice of motion for genetic tests under this section
May be filed not later than two years from the date of the child's
Birth by a local child support agency, the mother, the man who signed
The voluntary declaration as the child's father, or in an action to
Determine the existence or nonexistence of the father and child
Relationship pursuant to Section 7630 or in any action to establish
An order for child custody, visitation, or child support based upon
The voluntary declaration of paternity.

IT will vary by state, some states will not even allow challeges after a certain time frame, others will allow a DNA test to prove paternity

Now a request for joint custody, not much of a chance, but it will go to court. And of course you counter sue for him being in contempt of court and see if the judge may even lock him up for non payment.

Time for attorneys

Thank you for your responses.

Since the DNA test is to establish an order for custody, according the state code listed above, it appears that a DNA test may be granted, if I'm understanding it correctly.

Now, assuming the paternity is established and the case proceeds to custody hearing. Due to extenuating circumstances beyond the mother's control, that has is potentially traumatizing with life changing ramifications, and the voluntary lack of involvement by the father, to a child, whom otherwise has been provided with a happy, healthy environment in which the child has thrived, is it reasonable to seek exclusive custody with no visitation?

Due the sensitive nature of the case, I cannot provide more information other than to say, that the child has enough to contend with, without the introduction a perfect stranger, and that the child does know of the biological father, but not much else.

The money in arrears, at this point, is only relevant to the extent that is helps to prove irresponsibility and lack of interest.

Thanks in advance for you help.

Its totally unreasonable to try to seek custody with no visitation. And the fact that you chose to have a baby with this person sows the courts that you accepted his behavior. As far as the arrears goes it has no bearing because its separate from visitation. So right now the best would be to get with the program and allow the child to have a relationship with the father. The only reason not to would be to prove harm to the child by way of violence or abuse. Since you didn't mention those then once he gets it through the courts your going to have to allow it. Since your in California be prepared to go to mediation before the hearing.

I'm confused. If the birth certificate reflects the name of the father, then that person is the legal father and there should be no need for a paternity test. Nor should there be an issue of custody. The only issue here would be visitation and there would be no need to establish paternity.

Since the DNA test is to establish an order for custody, according the state code listed above, it appears that a DNA test may be granted, if I'm understanding it correctly.

7611. A man is presumed to be the natural father of a child if he
Meets the conditions provided in Chapter 1 (commencing with Section
7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any
Of the following subdivisions:
(c) (1) With his consent, he is named as the child's father on the
Child's birth certificate
7541. (b) The notice of motion for blood tests under this section may be filed not later than two years from the child's date of birth by the
Husband, or for the purposes of establishing paternity by the
Presumed father or the child through or by the child's guardian ad
Litem. As used in this subdivision, "presumed father" has the meaning
Given in Sections 7611 and 7612.


The two years statute of limitation is preemptive.He is presumed father thus there is no need of DNA tests.

The two years statute of limitation is preemptive.He is presumed father thus there is no need of DNA tests.

That's why this whole question makes no sense. Apparently we have a male who is listed as the father on the birth certificate and been acknowledged as the father by force of a support order. So why is there a need to establish paternity at all, its already been established!

If the father has decided that he wants to be a father, then he applies for visitation. Its unlikely he will get primary custody at this point because of his lack of support. But I see no reason to ask for a DNA test or even to establish paternity. If such an action is bought into court I would assume a judge would ask why do you want to establish something that has already been established and throw those motions out.

That's why this whole question makes no sense. Apparently we have a male who is listed as the father on the birth certificate and been acknowledged as the father by dint of a support order. So why is there a need to establish paternity at all, its already been established!
I have no idea!I can only guess that someone wants to get joint/legal,physical or both/ custody and this fact is misinterpreted as paternity establishment question .
P.S.-even DNA test results are negative,the "estoppel" should be applied notwithstanding whether the statute of limitation is 60 days or two years.

The father filed to establish paternity as well as request joint custody. The mother was informed, perhaps erroneously, that she had the option to stipulate he is the father and move on to custody, or request the DNA test.

For those who ask why not just "get with the program and allow the child to have a relationship with the father." Let it suffice to say that although the father is not abusive or physically harmful to the child, mentally the child would be adversely affected. My guess would be any counselor would agree.

I wonder how much consideration the judge will give to the timing of the father's request based on the child's current mental and emotional state. In my opinion, the timing is suspect at best.

The father filed to establish paternity as well as request joint custody. The mother was informed, perhaps erroneously, that she had the option to stipulated he is the father and move on to custody, or request the DNA test.

I will keep you posted on the paternity test ruling.

The father filed to establish paternity as well as request joint custody. The mother was informed, perhaps erroneously, that she had the option to stipulated he is the father and move on to custody, or request the DNA test.

For those who ask why not just "get with the program and allow the child to have a relationship with the father." Let it suffice to say that although the father is not abusive or physically harmful to the child, mentally the child would be adversely affected. My guess would be any counselor would agree.

I wonder how much consideration the judge will give to the timing of the father's request based on the child's current mental and emotional state. In my opinion, the timing is suspect at best.

This still does not address the issues GV and I raised. Your previous posts state that the father is on the birth certificate and has been ordered to pay child support. In such a case, the ONLY reason for a paternity test is if he is trying to state he is NOT the father because legally he already is and filing for paternity is moot.


I will keep you posted on the paternity test ruling.

Again, this request should be thrown out unless it is for the purpose of denying paternity. There is no need for a test to prove he's the father, when legally he already is.

As for filing for custody, again, the chances of changing the current custodial order given the circumstances you relate are very slim. A court is unlikely to simply award custody to a different parent unless if can be proven that the current custodial parent is a danger to the child.

However, there is a good possibility that he will get some sort of visitation. Probably supervised at first, but more as he proves himself. If there is a concern about the child's well being, a GAL should be appointed and proof of the child's capacity to understand the situation wlll have to be established.

the ONLY reason for a paternity test is if he is trying to state he is NOT the father because legally he already is and filing for paternity is moot.


Agreed, as this is likely the result of self-representation. Generally speaking, how does the court view self representation and what happens when the unrepresented party is unable to adequately file the correct motions/requests/responses due ignorance of the law?

Agreed, as this is likely the result of self-representation. Generally speaking, how does the court view self representation and what happens when the unrepresented party is unable to adequately file the correct motions/requests/responses due ignorance of the law?

The will help them through it as the law reads that it needs to be in the best interest of the child. So if he is requesting visitation its likely he will get it. It sounds like they over did it. So the courts can skip over those parts.

The father filed to establish paternity as well as request joint custody.

What??

Yes, it's confusing, which is why I posted the original question, but it's what the paperwork read.

(quote) GV70 disagrees : sorry... (end quote)



Family courts tend to be more friendly in nature then in other court systems. And if someone represents themselves then the courts tend to look upon the situation. If filings are made in error like asking for DNA when already the legal father. The courts will decline the request. And if the wrong paperwork is filed then they have other methods for refiling. Such as family law facilitators to help out so it can be done properly. But if the intent of the father is to gain visitation its most likely going to happen at some point. The paperwork being messed up will only be a delay.

I agree with Califdad, though it does vary by region. Most Family Courts will try to help someone who is going pro se. That doesn't mean the judge will allow what is filed for. Its also possible the father gave the person helping them wrong info so they recommended filing for a paternity test. But, as I've been saying all along, that issue is moot since, he certainly appears to already be the legal father. Therefore, the court will just throw out those petitions and focus on the petition or custody/visitation.

Thank you for all the responses. I will keep you posted on the outcome.

What precipitated the father's sudden interest?

(quote) GV70 disagrees : sorry... (end quote)
Family courts tend....


I am sorry-that evaluation was for the post above.I cannot see a button "Delete agree or disagree."

Do California mediators make recommendations to Judge if parents cannot reach an agreement in mediation? If so, will the child be questioned prior to recommendation? When is it appropriate to ask for a complete evaluation? How likely is court to grant temporary visitation in a case where an eleven year old child does not know the father and there is not a custody order in place, and the father is attempting to enter the child's life for the first time.

I would like to adequately prepare my child for any possibility in the near future without adding any unnecessary burdens.

You have the right to ask for a parental evaluation and they can be expensive. But also it could resolve a lot of issues at the same time. With mediation they may or may not make recommendations. They might only state what has been agreed upon.

Do children meet with mediators?

No they do not. In an evaluation they do but not in mediation. That is between the parents only.

The death of another child.

The death of another child.

Then its no surprise that he wants to be involved now. That is one of the hardest things anyone can experience. And Im sure it has changed his attitude completely.

Then its no suprise that he wants to be involved now. That is one of the hardest things anyone can experience.

I agree, but the loss of a sibling is equally traumatic and the best interest of the surviving child should take priority, specially since the child doesn't know the father (by his own choice).

At what point does the court determine that the child has enough to deal with? The timing is most questionable here.

Yes, I agree that losing one child can spur a person to dealing with other children. I also think this will influence the courts to provide visitation. But I still doubt if it would be enough for a change in custody.

I agree, but the loss of a sibling is equally traumatic and the best interest of the surviving child should take priority, specially since the child doesn't know the father (by his own choice).

At what point does the court determine that the child has enough to deal with? The timing is most questionable here.

At what point does the court determine that the child has enough to deal with? The timing is most questionable here.

I agree with you that the timing is awful. If I were the judge, I'd side with you. But it's hard to say what a judge will say. Every judge is different and this isn't cut and dried.

I'm so sorry you are having to deal with this. I hope you have substantial personal support for yourself.

Would it be appropriate to bring anything from the child counselor to the mediation appointment, or anything, for that matter?

I'm so sorry you are having to deal with this. I hope you have substantial personal support for yourself.

Thank you, we just do the best we can. Losing a child is difficult enough without worrying about the other's well-being. Words cannot describe it, nor would I wish it on anyone.

Thanks to all for all your responses.

Not really. Your better served waiting. You can bring it up if needed and then if its requested you can offer it. But I wouldn't bring it in with intent. Its boarderline parental alienation in a mediators eyes.

Ya know, I'm getting a little tired of people who want help yet withhold pertinent details and throw those details out piecemeal.

The fact that the father lost another child would explain why the sudden interest in another child. But this becomes less explanatory when it turns out this is a sibling who presumably was ignored just as much as the child in question.

After dropping these bits of info bit by bit, I'm not sure I believe much of your story any more. But the bottom line is it will be up to a judge, who will, hopefully, have the full story and be able to make an educated decision.

Ya know, I'm getting a little tired of people who want help yet withhold pertinent details and throw those details out piecemeal.

Scott, my apologies for the piecemeal of information. I can't speak for other posters, but in my case it's difficult to provide specific questions without identifying myself. I suspect other might feel the same. Also, keep in mind those of us who seek help are not as well versed in these matters some of the poster on this board, which is why I asked the questions in generalities and likelihoods.


turns out this is a sibling who presumably was ignored just as much as the child in question.

This is correct.



After dropping these bits of info bit by bit, I'm not sure I believe much of your story any more.

If it sounds like something out of a movie, all I can say is-- I wish it was. Look at my second post in this thread. Like another poster stated, this is not cut and dry and giving too many specifics would reveal the identities of the people involved. I ask merely out of desperation.

Regards,

Seeker,
I think you are more anonymous than you realize. As long as you do not identify yourself to anyone here or give your place of work or anything like that, the chances that someone will be able (or even want to) identify you are slight. For example, you can create a new email address for the purposes of signing up here, so that you aren't giving your own regular email.

I also hope you will consult an attorney soon if you haven't already. Sometimes a lawyer seems too expensive, but compared to your child's mental health, a debt might seem a reasonable thing to take on.

The other thing to consider is the possibility that although difficult for you and your child in the short term, the father's involvement could be a good thing in the long run--or at least a mix of good and bad. I'm not arguing that, but you really should at least consider the possibility.

My ex is far from a perfect father but he IS an interested adult in my kids' lives. He was physically and emotionally abusive to me, and he is sometimes emotionally abusive to my kids. This was very hard when they were little, but they have had a place to retreat to when he is impossible--my house. And because they have the power to leave when he is difficult, it's taught him to treat them with more respect. In short, he has become a tolerable father through more practice and limits set by both the kids and by me. I do not think this ever could have happened if he had remained in the house and none of us had a place to flee to. Nowadays, my kids are nearly adult and have turned out well and their father contributes to their well being ( as well as causing all kinds of small dramas... but they are SMALL dramas!)

Good luck.

I want to recommend the book Always My Brother (http://www.jeanreagan.com/favorite.htm), by Jean Reagan.
It's about losing a sibling and it's written for children. Even if your child is a bit older, it might help.

First, I understand the feeling that you don't want to identify yourself too much. But unless this is a celebrity case that is very much in the news (and I don't recognize it so far), its unlikely someone is going to identify you. And, if it is such a celebrity case, then I would assume you have a well-established law form advising you which means you don't really need us. Finally, if you are really concerned about you being identified, then why drop the little bits at all?

As for being well-versed in the use of this medium, askers are well served by browsing around a bit before jumping in and posting. There is a knack to asking questions on a site like this, and reviewing other questions and the answers can help you get the best help you can.

I also ask you to put yourself in our shoes. The fact that a loss of a child spurred the father in this case to want to become close to a surviving child is key and definitely affects our answers. But when it turns out the lost child was a sibling who was ignored just as much as the surviving that changes the situation yet again. It becomes very frustrating to spend time answering a question, only to find out your answer was based on a false premise because you were misled by the asker. Finally, we have dealt with people here who like to make up situations to see what reactions they will get. Such times it often typical for such posters to throw out info to counteract the advice being given.

So to sum up. You've been told so far that

a) there is no need to petition for paternity since paternity has already been established
b) there is little likelihood of a change in physical custody unless the mother can be proven unfit
c) there is a strong probability the court will grant visitation, possibly supervised at first

I still feel that nothing more you can say will change that.

Asking, thank you. I will look into it.

Scott, I imagine it's frustrating to answer a question only to find there was pertinent piece of information missing, so thank you for continuing to provide help. When this is all said and done, I will post the results as it may help others in the future. Then you will see the full story and why I had to tread lightly.

Wish us luck, and pray that my child comes out of this unscathed.

I ran a search, but could find what I was looking for, so here is my question.

Im going to say something. Its going to sound harsh. But here goes.

That child has a right to know their bio dad. You need to seek therapy for the problem your having because if you continue down that path and let fear rule you and play what if games. In the end you could lose custody of the child you have. There more then likely WILL be a reintroduction period for the bio dad. Expect it if court papers have been filed. That may or may not progress. But you shouldn't look to interfere with it. In doing so can be your downfall. Why haven't you married? By your admission its been 10 years. If you had been married then you could have adopted the child or the non bio dad could have and this entire situation would have been mute. Please for your own sake seek out a therapist and talk with them about this situation and your feelings.

I've merged all your threads, please don't start new threads with the same question.

I've given you a summary of the situation. Your latest post doesn't change that summary.

Hi there. This is the original poster. I created a new account a few months ago because I couldn't locate the acct info for Seeker2010 after several tries. In anycase, I told you all I would update you when the case was over, and now it is.

Just recently I was awarded sole legal and sole physical custody. The petitioner, bio-father, will have no visitation and cannot even petition to have the order modified until a whole list of requirements are met, which essentially means he is out of our lives until she decides otherwise. I cannot put into words how very happy it makes me to report this news.

See, I couldn't say too much before because I didn't want to somehow or in any way slander, libel, or appear to be attempting to manipulate my daughter's opinion of her biological father in the eyes of the court. Now that the case is over, I can tell you that the death of my eldest daughter, in my opinion and in the opinion investigator assigned to her case, was in large part due the actions and behavior of the bio-father. Fortunately, that did not play a role in the decision for custody, nor was it discussed other than to mention the remaining child was undergoing grief counseling due to the death of her sister and was the impetus for the paternity action after 8 years of absence.

***************************************

My advice to others is 1) not all biological parents are crated equal - know that judges know that! 2) follow your instincts and fight like heck to protect your children against all odds 3) when the chips are down and others tell you to just deal with (insert your long-shot here)- scour the corners of the earth to find the one person who can help and is willing to take a chance with you 4) there is ALWAYS hope.

Lastly in response to califdadof3...


Im going to say something. Its going to sound harsh. But here goes.

That child has a right to know thier bio dad. You need to seek therapy for the problem your having because if you continue down that path and let fear rule you and play what if games. In the end you could lose custody of the child you have. There more then likely WILL be a reintroduction period for the bio dad. Expect it if court papers have been filed. That may or may not progress. But you shouldnt look to interfere with it. In doing so can be your downfall. Why havent you married? By your admission its been 10 years. If you had been married then you could have adopted the child or the non bio dad could have and this entire situation would have been mute. Please for your own sake seek out a therapist and talk with them about this situation and your feelings.

... all I have to say is this comment should read (every child has a right to be protected, their father's included.

Thanks for reading. Happy New Year.

Oops, I meant to say


... all I have to say is this comment should read (every child has a right to be protected, from their father's included.

Well you see I agree with Califdad here. I agree that every child has a right to know their bio dad. That includes to know that he is a dead beat, and abuser etc.

Absolutely, Scott, I agree 100% with you as long as the child is of sufficient age and maturity to be receive the information. And, 11 years old is not the appropriate age, imo, specially with our set of circumstances. My child knows of her bio-father and has seen pictures, but I'll the reserve the details of what/who he is until she asks or I see it necessary for her to know.

Thanks for all the input guys. The answers definitely helped to prepare for the possibilities.

I would think 11 is actually old enough. But you know your dtr best.

Congratulations ortiz on your successful outcome. I think you did the best possible thing for your daughter. I'm so sorry you have lost a child, but happy that you have been able to ensure the safety of the other. It sounds to me like you did everything right.