Ask Me Help Desk - Non-Biological Father's Rights?

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.

Quote:

Originally Posted by Seeker2010

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.

Quote:

Originally Posted by GV70

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.

Quote:

Originally Posted by ScottGem

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.

Quote:

Originally Posted by Seeker2010

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.

Quote:

Originally Posted by Seeker2010

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.

Quote:

Originally Posted by Seeker2010

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.

Quote:

Originally Posted by ScottGem

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?

Quote:

Originally Posted by Seeker2010

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.

Quote:

Originally Posted by Seeker2010

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?