Q. My ex girlfriend gave birth to our son three years ago. I was at the hospital and signed a document they handed me that said I was the father. We never married. We lived together for another year, but then split up. For six months, since I got a new girlfriend, the ex has refused to let me see our son. What can I do?
Robert, Lake Tahoe, CA
Establishing Who The Legal Father Is
We always know who the mother of a child is, but it isn't always certain
who the father is. The law has developed ways of dealing with this, keeping
in mind it is the policy of the state to try to find legal fathers for
children so that they, and not the taxpayers, have the burden of supporting
that child.
Under the law, when a woman gives birth to a child during a marriage there
is a legal presumption that he is the biological father if certain conditions
are met. There are a number of statutory ways of establishing parentage
since there are a number of different situations where children are conceived
and born. Here I only write about situations where there was no marriage.
Establishing you are the father is a precondition to establishing two
very important things: Your right to share the custody and visitation
of the child and your right to receive child support, or your obligation
to pay it.
Family Code section 7611 establishes this presumption where
1) the man "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, ... or after a judgment of [legal]
separation is entered by a court"; or
2) before the birth, he and the mother attempted to marry each other but
where the marriage was for some reason invalid, if the child is born during
the attempted marriage or within 300 days after it termination OR if the
attempted marriage is invalid without a court order, the child is born
within 300 days after the ending of cohabitation; or
3) After the birth, he and the mother marry or attempt to marry each other
but the marriage could be declared or is declared invalid, where (a) with
the father's consent is named on the birth certificate or (b) he is
obligated to support the child under a written voluntary promise or under
a court order; or
4) If the man receives the child into his home and openly holds him out
as his natural child.
Family Code sections 7570 to 7577 govern the establishment of paternity
by voluntary declaration. This is called a VDOP. It is really for establishing
paternity between a child and unmarried persons.
Since 1995, hospitals in California have been required to have on hand
this declaration and informational documents about establishing paternity
by this method. Hospitals are required by law to "provide [these
documents] to the natural mother and [to] attempt to provide, at the place
of birth, to the man identified by the natural mother as the natural father...."
Family Code section 7571(a). Family Code section 7572 sets forth what
the informational materials of the legal effects of signing the VDOP,
including the rights that a father may be assuming and those that he is
giving up (like limitations on his ability to dispute parentage later).
Hospitals are then required to submit these documents to the California
State Department of Child Support Services [DCSS].
Family Code section 7573 provides that, with certain qualifications, once this VDOP has been submitted
to DCSS, the VDOP "shall establish paternity of the child and shall
have the same force and effect as a judgment for paternity issued by a
court.... The voluntary declaration of paternity shall be recognized as
a basis for the establishment of an order for child custody, visitation,
or child support."
VDOPs Can Be Rescinded Under Limited Conditions
The VDOP may only be rescinded (reversed) by either parent by filing a
recission form with DCSS within 60 days of its date of execution unless
a court has already entered orders for support or custody based upon it.
Family Code section 7575.
Nonetheless, if a challenge is made within certain time frames to the
VDOP after the recission period is passed, Family Code section 7575(b)(1)
may permit the Court to set the judgment it has created aside "if
the court finds that the conclusions of all the experts based upon the
results of genetic tests ... are that the man ... is not the father,"
UNLESS the court finds that denial of an action to set aside the VDOP
is not in the best interest of the child. Take a look at subsection (b)(1)
to get a sense of what those considerations include.
Family Code effectively sets a 2 year statute of limitations for filing
a motion with a court to set aside the VDOP; otherwise it cannot be set
aside. Genetic testing must prove the supposed father is in fact not the bio dad.
In your case the VDOP cannot be set aside since it was signed more than
2 years ago. Based upon it, you are the legal father. If you need the
court's assistance to enjoy visitation rights with your son, you need
to file and serve a Paternity action, attach the VDOP (which you can get
from DCSS), and file a separation OSC or motion to have custody and visitation
rights determined. The case then becomes much like any other custody dispute.
If you want to read more about paternity, visit us here!
Thurman Arnold