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My girlfriend is due to have a baby next month. I am not sure if it mine. What do I do?

Q. My girlfriend is having a baby in September, but I don't know if I am the dad. A friend told me that I need to be careful because if I go to the hospital with her when she has the baby, I will have to pay her child support. Is this true?

Keith S., La Quinta, CA


Keith:

California law encourages hospitals to get a signed Voluntary Declaration of Paternity ("VDOP") from the male who appears to be a parent at a time when a mother gives birth. This is something that is presented to proud fathers at the time of a child's birth, along with information about legal obligations, and that they are asked to sign. There may be a lot of guilt and confusion going on at this time. Hopefully there is simply pride.

The public policy is that the State wants to identify biological fathers early on, and to encourage them to step up to the plate both financially and in terms of providing emotional parenting to children. It is also assumed the male who shows up for the birth is most likely the bio dad, and that the parties know it. Obviously, it is not always true and sometimes a man does not turn out to be the actual father. Sometimes he believes he is, and sometimes he is told he is.

Children need their biological parents; this is critically important. Any bio parent who shirks his responsibility out of financial or emotional selfishness lacks integrity, and their decision has serious consequences on other lives that a true parent will recognize and regret one day, unless they are a sociopath or lack any conscience.

BUT the signing of a VDOP has serious important legal consequences. It is equivalent to a Judgment of Paternity, which may only be set aside for a limited time. While children deserve parents, whether a man that has sex with a mother before a child is born should be determined based only upon that, and their sense of moral responsibility, and therefore to be adjudged a responsible parent also raises integrity and fairness questions in favor of the alleged parent. California law on this subject means well, and may statistically result in the proper outcome more times than not, in my view innocent men who turn out not to be biological parents have rights too. The law says so too, and the question becomes whether you or not you waive your rights to object in a timely fashion.

So, please understand, if you sign a voluntary declaration of paternity next month, you may be adjudicated the legal father of this child regardless whether you are the bio parent. That has privileges and it has burdens. You will have the privilege (assuming the mother does not challenge you before two years after the child's birth) of being a "legal parent" whatever the DNA turns out to be, including rights to custody, visitation, companionship, etc. You will have the support obligations for a long, long time, and even possibly forever.

Family Code section 7573 establishes the effect of a VDOP. Section 7575 allows you to rescind that declaration but only if you do so within 60 days after birth of the child. Otherwise, after birth, you have a 2 year window to seek paternity DNA testing and an order that you are not, in fact, the bio-dad. The court has discretion to find you are the de facto parent even if you are not bio-dad, however, so even if DNA is conclusive and you are not otherwise the father - absent another man ready, willing, and able to step up, you may find yourself stuck.

These are weighty matters. In my experience, and in most judge's experiences, woman know who the dad is. Still, there are many reasons why a mother might lie - even including trying to insure that some bad person is never adjudicated the dad. I would never judge your girlfriend and have no opinion on what your status truly is.

So, do what your heart tells you you are the dad, fine. But consider getting DNA testing immediately before you, or the child and you, form any attachments and that way there will never be any question - nor any need to hire me to dispute paternity!

Best of luck and, hopefully, congratulations!


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