Creative Family Solutions, Cecil Cianci Law, PC
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Many children in California are born out of wedlock. Oftentimes, this raises issues with regard to paternity. Why does this matter? For a number of reasons. To start, a child will likely want to know the identity of his or her father. Additionally, child support can only be obtained from a father once paternity has been established. Also, a man has no legal right to visitation with or custody of a child without first having established paternity.

Establishing paternity may seem easy enough, based on DNA testing. While DNA testing certainly is one way to establish paternity, it is not the only way. The signing of a paternity affidavit is another common way to establish paternity.

But, the law also creates a number of presumptions with regard to biological parentage that can complicate matters. For example, a man may be presumed to be the child's biological parent if the child was born during the course of marriage or within 300 days of divorce. Also, a man who takes a child into his home and treats the child like his own is likely to be presumed to be the child's biological father. What happens, though, if a man signs a paternity affidavit while the mother was married to another man at the time of the child's birth?

These presumptions of biological parentage can be overcome by clear and convincing evidence. Oftentimes, this means obtaining a DNA test, but public policy generally disfavors the disestablishment of paternity, so a DNA test may only be appropriate to establish paternity rather than to rule out a presumed father. In the end, however, the court will make a determination in accordance with the law and in line with the child's best interests. A court may set aside a paternity affidavit within two years of its execution, if warranted, or it may deem more than one man as the child's legal father.

Paternity issues, while extremely important, can be enormously complicated. For this reason, those who are hoping to address child support, child custody and/or visitation issues may want to sit down with an experienced legal team.

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