Legal Presumption of Paternity


Generally, no legal presumption of paternity exists as to the father of a child born by an unwed mother. However, a person who claims to be the father of a child born to an unwed mother may demonstrate to the court that he acted like a father as soon as he reasonably knew of the child or the pregnancy and may establish legal rights to the child.

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There are many factors the court will consider in determining whether to establish paternity.

The court will look to the following factors in determining whether to establish paternity as to an alleged father who was unwed or planning to wed the mother at the time of conception:

  • Whether the alleged father publicly acknowledged paternity
  • Whether the alleged father paid medical expenses related to the pregnancy
  • Whether the alleged father took prompt legal action to establish paternity, or whether the delay in establishing legal paternity was reasonable
  • Any other action before or after the child’s birth that would indicate that the alleged father was taking full parental responsibility of the child

If the court finds that the alleged father sufficiently demonstrated that he acted as a father would, then the court may establish paternity in the alleged father. However, if the court finds that the alleged father did not act to take the appropriate level of parental responsibility, then the court may decline to establish paternity in him, even if he is shown to be the biological father.

If the biological mother was married and living with her husband at the time of conception, the mother can unilaterally block any attempt by another person seeking to establish himself as the biological father. However, if the mother and alleged father are unwed, the mother cannot unilaterally block an alleged father from establishing paternity solely because the mother and alleged father are not married.

Legal Presumption of Husband Paternity

Though the most obvious way to overcome that a husband cohabiting with a wife at the time of conception is the father is through a paternity test, other methods may be available. For example, if the husband was sterile or impotent at the time of conception, then the presumption is overcome.

Also, for the California family law court to recognize a paternity test, a party must request the paternity test to the court, and the court must authorize the request. Any test not authorized by the court has no legal effect, even if the test was properly performed and conclusively establishes that the husband is not the biological father.

Even if a husband is determined to be the biological father, the court may legally recognize someone else as the legal father under narrow circumstances. For example, if the wife divorces the husband shortly after conception, subsequently establishes a long-term relationship with a third party, and the third party believes he is the father of the child and represents himself to other people as the father, a court will look closely to determine if it would be unfair to establish paternity in the husband at the time of conception. This is true especially if the third party has a relationship with the child and the third party, the wife, and the child have considered themselves a family for a significant period of time. In such cases, the court may find that the third party is the legal father, even if he is not the biological father.

Note that this may have significant consequences. California courts prefer that a child grow up with two parents rather than one, and are inclined to legally recognize a presumed party who has a father-like relationship to the child, even if the facts later show that he is not the biological father. This may mean that, if a presumed father has established a relationship with a child, and significantly later determines that the presumed father is not the biological father, the court has the discretion to acknowledge the presumed father as the legal parent. This may apply even if the formerly presumed father no longer wants the legal responsibilities of parenthood over the non-biological child, as long as there are no other known potential or alleged biological fathers.

If a father acknowledged paternity in a court document, then he is no longer a presumed father: for court purposes, he is the legal father, even if tests later show he is not the biological father.

Wallin & Klarich Paternity Lawyer

Wallin & Klarich paternity family law lawyers

Contact a Wallin & Klarich family law lawyer as soon as possible to discuss your paternity options.

Whether you’re a father or mother seeking to establish or deny paternity, contact a Wallin & Klarich family law lawyer as soon as possible to discuss your options. In either case, you need to act quickly or the court may use the delay against you. Parenthood comes with significant duties but also profound rewards, so consult with a family law attorney to determine what your rights are. Parenthood is one of the most important relationships in your life, so you will need a legal professional on your side to help explain the laws to you.

With offices located in Los Angeles, Orange, Riverside, San Bernardino, San Diego,  Victorville, West Covina, Sherman Oaks, Torrance and Ventura , there is a Wallin & Klarich attorney available wherever you happen to live.

If you or someone you know has an issue related to paternity, you will need an experienced paternity lawyer to advise you on the best course of action. At Wallin & Klarich, we have helped people with paternity issues for over 30 years. Call us today at (888) 749-7428. We will be there when you call.

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