Paternity

Through the handling of many paternity matters, MMD has come to the conclusion that a brief explanation of procedure in California is beneficial. This information is not intended as legal advice.

FILING AND SERVICE OF SUMMONS AND PETITION

A case is begun by filing a petition requesting a determination of paternity with the court. After the petition is filed, it and a summons must be served on the other parent, called the Respondent in the case, by a process server. The Respondent then has 30 days to answer the petition by filing a response, which essentially admits, denies, or corrects the data in the petition. If no answer is filed within the required time, the Petitioner can request entry of a default judgment, after which the Respondent can no longer contest or correct the petition.

ORDER TO SHOW CAUSE HEARING

In some cases it is necessary for a party to seek immediate or emergency court orders after a case has been filed when the party cannot wait for a trial date, which can be months away. When orders for child support, child custody, visitation orders, restraining orders or attorney fees are needed, the requesting party can file an Order to Show Cause requiring the other party to appear in court on the requested date so the court can consider the requests. The orders, if granted, last until replaced by later orders.

UNCONTESTED CASES

In cases where the parties can agree on all issues to be decided and the agreement is put into writing, no answer need be filed. Such a case can be handled on an uncontested basis, usually with no court appearance by either party.

CONTESTED CASES

In cases where no agreement can be reached on some or all of the issues in the case, the matter is considered contested. Either party can request that the case be put on the waiting list for a trial date, which the court will assign based upon its workload and the complexity of the case.

INVESTIGATION AND DISCOVERY

If there are financial issues in a case, it will be necessary to investigate the facts of the case by requesting information from the other party, or from third parties such as banks, employers, accountants, etc. This information can be obtained voluntarily, by subpoena or at an oral deposition.

Both the preliminary and the final declaration of disclosure (DOD) must be served on the other party with certain exceptions. Neither disclosure is filed with the court. A declaration stating service was made of the preliminary and final declaration of disclosure must be filed with the court (see form FL-141). A preliminary declaration of disclosure but not a final declaration of disclosure is required in the case of a summary dissolution (see Family Code Section 2109) or in a default judgment (see Family Code Section 2110) provided the default is not a stipulated judgment or a judgment based upon a marriage settlement agreement. A declaration of disclosure is required in a nullity or legal separation action as well as in a dissolution action.

Another form that is exchanged with the DOD is the schedule of assets and debts (SAD). This form must be served by each party on the other, outlining all financial details whether the property is believed to be community or separate in nature. You must list all your known community and separate assets or debts. You must also include assets even if they are in the possession of another person, including your spouse. If you contend an asset or debt is separate, you may place a P (for Petitioner) or R (for Respondent) in the first column (separate property) to indicate to whom you contend it belongs.

All values should be as of the date of signing the declaration unless you specify a different valuation date with the description. For additional space, use a continuation sheet numbered to show which item is being continued. As with both forms discussed, they should not be filed with the court - the forms even state: "THIS FORM SHOULD NOT BE FILED WITH THE COURT"

PARENTAGE

If one of the parties contests paternity, DNA tests are usually ordered by the court or agreed to by the parties. The tests are administered to the parties and the child and the results take between four to six weeks to obtain. The results can exclude a person as a possible parent or indicate to a high probability whether or not a person is the parent of the child at issue.

CHILD CUSTODY

Because the issue of child custody could arise in these cases, you should be aware of California law in this area. Essentially, the law prefers a "joint legal custody" order, where both parents are involved in major decisions affecting a child, such as major medical procedures, schooling, religious training, and the like. Physical custody of a child is generally awarded to one party or the other based upon the court's perception of what would be best for the child. The non-custodial parent is then given liberal visitation rights, either on a flexible schedule or on a rigid schedule basis. Some parents arrange a "joint physical custody" plan and share physical custody. In cases where there is a dispute about physical custody or a visitation schedule, the Court will require the parents to meet with a court mediator to discuss those issues. In most counties in California, the mediator will make a written recommendation to the court if the parents cannot agree. In the absence of an agreement to the recommendations of the mediator, the court will decide the case after listening to the parties and any witnesses (the child never testifies). The Court can order a custody evaluation by a psychologist with special training and expertise in child custody. After the psychologist concludes the evaluation a report is sent to the judge who often follows the psychologist's recommendations.

CHILD SUPPORT

The non-custodial parent will be ordered to pay monthly child support to the custodial parent until a child who is a full time student graduates from high school or reaches age 19, whichever occurs first. If a child is not in high school, support ends at age 18. The amount of support is based upon the earnings and expenses of both parties. Child support is not always paid by the non custodial parent. Sometimes, the custodial parent will have such a high income that he/she is ordered to pay child support. This is rare but can happen depending upon the circumstances of the case. We have found that after gathering the required data that we can predict fairly accurately what the court is likely to order.

As an additional form of child support, parents are usually ordered to cover their children on health and life insurance, and to share in paying any such expenses not covered by insurance.

The parent with physical custody for more than half the year is entitled to take the child as a tax deduction for the year unless the court orders otherwise or, the parties agree otherwise in a written IRS document attached to both parties' tax returns. You should know that a child must have a Social Security number if child support is being paid or a deduction taken. Apply now if a number is needed.

ESTATE PLANNING

If you do not have a will, now is an excellent time to consider having one drawn. A will can dispose of your property and it can designate your preference for a guardian for your children if something were to happen to you.

RECORD KEEPING

We cannot stress enough the importance of keeping records when any financial issues are present or when the court has made financial orders for support. If disputes arise later about late or missing payments, you must be able to produce records showing payments made or received.

CONCLUSION

This brief explanation of procedure is not designed to replace our office conferences. It is simply a guide to some of the issues that arise in the course of paternity matters.