When is a Paternity Action Necessary?

The family unit has changed in the past 25 years, and with it has come a growing need for paternity actions in court.

a happy family together

Between 2005 and 2012, about 45 percent of first-time mothers were unmarried and living with a partner, or unmarried and without a steady partner. That is a sizeable increase since the 1990s, when 18 percent of first-time moms fell into this category.

This changing face of the family dynamic means more men and women seek legal guidance in the areas of child support, financial help, custody and visitation rights. A paternity action addresses these needs.

A paternity action is done to establish paternity and custody rights for a child that was conceived out of wedlock.

The term “paternity action” may conjure thoughts of victorious guests parading around the set of Maury after learning they are or aren’t the father of a child. A paternity action doesn’t always have the tabloid-fueled flare of determining who’s the “baby daddy.”

When children are born to parents who are married but are divorcing, custody rights are determined as part of a divorce. But what are you to do if you aren’t married? Let’s say you’ve been in a long-term, committed relationship that resulted in a child. After living together for several years, you’ve both decided to go separate ways. A paternity action will be necessary to outline custody and visitation details for your child, since you aren’t filing for divorce. Either of you can file.

“A dad may file because he wants child support, or a mom may file because she wants to establish herself as the custodial parent,” says John Griffith.

All of this begins with establishing who is the father of the child. That can be done a couple of ways.

One option is for the parents of the child to sign a Voluntary Declaration of Paternity. Doing this establishes them as the child’s legal parents. This can be done at the hospital when the child is born, or at a later date.

If paternity isn’t established voluntarily, you can ask your local child support agency to bring an action to establish parentage and request a child support order. This is a free service in California.

A third option is to go to court to establish parentage. When going this route, it is a good idea to speak with an attorney who specializes in family law because this process requires you to complete, serve and file several court forms, as well as have a trial before a judge.

If you’ve received a petition for paternity, you must respond to it. A failure to do so means the court could enter a default against you.

Once you’ve told the court you’re the father of the child, this ruling cannot be contested after two years have passed, even if DNA and blood tests show that you’re not the biological father of the child. You will be the legal father of that child and subject to child support orders until the child turns 18.

You can learn more about paternity actions here.