~ Paternity, Child Custody and Visitation Information ~

What is Paternity?

       When a child is born to parents who are not legally married, the Court is frequently asked to formally recognize the legal rights (and obligations) of one of the parents, most often the father.  One or both of the parents may ask that the Court establish paternity for a number of reasons, but most often so that other orders can be made, such as a request for custody, visitation or support.  The fact that someone’s name is on the birth certificate, creates a rebuttable presumption that the person whose name is on the birth certificate, is in fact the biological parent of a particular child (a rebuttable presumption is a presumption that you can provide evidence to show that it’s not true).  This can have some significant ramifications, including the fact that the Court will be looking to that person for the payment of child support and health insurance. In some cases, that presumption may be incorrect in that the person whose name is listed as the parent on the Birth Certificate, did not actually contribute genetic material to the child (i.e. have sex and create a baby) and in other cases, the name of the biological father may be blank for a number of reasons, including the anger of the birth mother, because the child was conceived during an affair or simply because the birth mother does not want the biological father in the child’s life. In those situations, a DNA test will be required in order to presumptively establish proof of parenthood of the child in question and a request for that test must be made in a certain manner and within a proscribed period of time for the Court to order that one be administered.

       Administration of the DNA test is a very straightforward process that involves having the inside of the cheek of each “subject” swabbed with a Q-tip.  This process is absolutely painless and only takes a few seconds to complete.  Both the child and the presumed father will have a swab taken and the generic material collected on the Q-tip will be scientifically analyzed to see if there is a match.  A Paternity Analysis Report will be produced that shows the test results. If there is a match, the report will contain language similar to the following:

“The Combined Parentage Index is 153,690,000 (corresponding to a Probability of Paternity of 99.99%, assuming prior probability = 0.5) and indicates that these genetic data are 153,690,000 times more likely if (name of presumed father) is the biological father of (child) then if an untested, unrelated (race of presumed father) man is the biological father.  This genetic analysis excludes at least 99.99% of (race) men from paternity.”

       The cost of a DNA test is typically less than $300.00 and the test results can often be returned in less than one week.  In certain circumstances, the Court may order that the test be performed and may also pay for the costs of the test.  Collection of the genetic material can sometimes be performed right in the Courthouse.  It is important to note that only genetic tests that are ordered by the Court and performed by a labratory operating under the provisions of the Family Code will be admissable for the purposes of establishing whether someone is, or is not the biological parent of the child in question.

       Are there any presumptions about who a child’s father is?

Yes.  The Court will consider a number of factors, including the fact that when a child is born to a married woman, there is a rebuttable presumption that the husband of the marriage is the biological father of the child.  Specifically, California Family Code § 7611 states, in part that:

A man is presumed to be the natural father of a child …
 
(a) He 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 by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.
(b) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:
(1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.
(2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.
(c) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:
(1) With his consent, he is named as the child’s father on the child’s birth certificate.
(2) He is obligated to support the child under a written voluntary promise or by court order.
(d) He receives the child into his home and openly holds out the child as his natural child.
(e)
 
       As we all know, there are times when a child is born to a married woman and the husband is not the biological father of the child (perhaps in cases where the married couple were separated during the conception).  In those cases, the Court can be asked to determine who the biological father is and to recognize the legal rights of the father to custody, visitation and support, but only after the Court first makes a finding that the party requesting the genetic test is a "presumed parent."  This is a highly complex area of the law and having an experienced attorney like Don Werno can mean the difference between having a relationship with your child, or not as the Courts and a substantial body of case law have made it clear that simply being a biological parent of a child born to a married couple is not enough, that is if you are not one of the married parties (i.e. if you fathered a child with a married woman).

       If the parents are unmarried, then the process is substantially easier.  First, the biological parents (both mother and father) can sign a document called a “Declaration of Paternity (CS 909)” form.  This document asks for all of the basic information about each of the parents, where the child was born, when and so on.  The document must be witnessed by someone who is qualified to do so (as defined on the form itself), or signed in the presence of a Notary Public.  The form itself cautions that it should not be signed by the biological mother if she is married to someone other than the biological father of the child. It can,however,be signed by the biological father regardless of his marital status.  The purpose for this warning is related to the discussion above about the presumptions set forth in Family Code § 7611.  To be clear, however, there is no legal requirement that anyone sign the Declaration of Paternity, so the signing process is completely voluntary and you can, in fact, nullify your prior execution of the form by timely filing a Recession Form for the Declaration of Paternity (form CS 915).  Note that you only have 60 days after the date you signed the Declaration of Paternity form (CS 909) to cancel your declaration and the rescission form only has to be signed by one of the parents, not both.

       If the Declaration is signed in the hospital at the time of birth, the Hospital will typically record both the mother’s name and the biological father’s name on the birth certificate.  In the event that the Voluntary Declaration was not signed at the Hospital or the Hospital failed to properly record both of the parents’ names on the Birth Certificate, the parents can request a new Birth Certificate once the CS 909 (Declaration of Paternity) form has been completed.  An Application to Amend a Birth Record-Acknowledgement of Paternity (VS 22) form is used for that purpose.  You will need to submit the Declaration of Paternity (CS 909) form along with the Application to Amend a Birth Record-Acknowledgement of Paternity (VS 22) form and a “original” sworn statement (VS 111 form) attesting to the fact that you are authorized to obtain a copy of the child’s Birth Certificate along with payment of a processing fee.

       Another way to establish paternity is to file a Petition to Establish a Parental Relationship (FL-200 form) with the Court, which then starts the legal process to establish parentage.

Child Custody

       Regardless of whether the parents were a married couple, living together, or simply dating, Child Custody becomes an issue when both parents have an ongoing interest in being involved in the life of their child.  When this occurs, the Court will be asked to make an order that decides which parent will have Physical Custody of the minor child and what “Legal Custody” rights each parent will have.

       A Court order is frequently needed to ensure that you will have access to your child’s school and medical records, as well as legally recognizing your parental “rights” to make important decisions about your child, like where they go to school, what medical treatment they will receive, what extracurricular activities they will participate in and what religion they might practice.  These rights are part of the “Legal Custody” of your child and is most often ordered as a “Joint Legal Custody” order, meaning that both parents will share equally in the decision making responsibilities for their child.

       Another set of “rights” pertains to where a child will live, which is called a “physical custody” order.  Frequently, this type of order is expressed in terms of “primary” and “secondary” physical custody, meaning that a child will primarily live with one parent, with the other parent having visitation rights, which more often than not also involves overnight visitation.  

50 - 50 custody orders

       In certain circumstances, parents share “joint physical custody,” which is usually found in situations where the parents have a 50 – 50 custody arrangement and the child(ren) live with each parent an equal amount of time.  There has been a positive trend developing for the past few years, where the Courts have been increasingly inclined to award both parents equal custody of their children under the right circumstances.  In these situations, custody and visitation can be accomplished in a number of different ways and some cases, the child actually stays in the house and the parents move in and out during the parent's visitation period.  

      Some common joint custody parenting arrangements include week on, week off,  5-2-2-5, 3-4-4-3 and 2-2-3-2-2-3 schedules.  While these may sound a little complex at first, they really aren't and the following examples should help you understand how each of the parenting arrangements actually work in practice.  In each of the following examples, one parent is labeled "A" and the other parent is labeled "B" for illustration purposes. 

       A week on, week off custody arrangement would work like this:

Week   Monday Tuesday Wednesday Thursday Friday Saturday Sunday
1 A A A A A A A
2 B B B B B B B
3 A A A A A A A
4 B B B B B B B

         In this example, the child(ren) would stay with one parent for an entire week and then transition to the other parent for the following week and so on.  The transition often takes place at school, with the child(ren) being picked-up from school by the receiving parent (the parent who will have custody / visitation next).  The child(ren) are then dropped off at school ending their visitation period, thus minimizing the contact between the parents. 

 ~~~

 

          In this 5-2-2-5 example, one Parent has the child(ren) for five (5) consequtive days and then the child(ren) are exchanged and live with the other parent for five (5) consequitive days.  The child(ren) then stay with each parent for two (2) days and then return to the five (5) day cycle.  This arrangement allows each parent to spend an equal amount of time with the child(ren) and because of the alternating schedule, each parent also enjoys and equal number of weekends with the child(ren) as well.  This arrangement is typically used when older children are involved and where spending five (5) consequtive days away from one parent is less of a problem.

         The schedule looks like this:

Week   Monday Tuesday Wednesday Thursday Friday Saturday Sunday
1 A A B B A A A
2 A A B B B B B
3 A A B B A A A
4 A A B B B B B

~~~

 

       The following example is a 3-4-4-3 parenting schedule and looks like this:

Week   Monday Tuesday Wednesday Thursday Friday Saturday Sunday
1 B B A A A B B
2 B B A A A A B
3 B B A A A B B
4 B B A A A A B

       An advantage of the 3-4-4-3 parenting schedule is that each parent has fixed days each week with the child(ren) and the child(ren) do not go more than four (4) days without seeing the other parent.  This arrangement is particularly good when younger children are involved and this schedule also minimizes the number of times that the child(ren) have to transition from one home to another during the month.

~~~

 

       In a 2-2-3-2-2- parenting agreement, the schedule would look like this:

Week   Monday Tuesday Wednesday Thursday Friday Saturday Sunday
1 A A B B A A A
2 B B A A B B B
3 A A B B A A A
4 B B A A B B B

       In this arrangement, the children spend an equal amount of time with each parent during the week and on the weekends.  This arrangement also ensures that the parents and the child(ren) will have frequent contact with each other because the maximum number of days that a child would go without seeing the non-custodial parent would be two (2) days.  This parenting agreement is particularly good when very young children are involved, however, the disadvantage is that there are substantially more transitions between parents each month.

~~~

      Other considerations that may also need to be addressed, even in a pure 50 - 50 custody arrangement are what holidays the children will spend with each parent.  In some cases, the parents may simply agree that there will be no special holiday arrangement and the children will spend each specific holiday with the parent who currently has custody on that specific holiday.  In other cases, a traditional holiday schedule is specified, which typically alternates holidays between the parents, so that one parent will have a certain holiday in years that end in an even number and the other parent will have that holiday in years that end in odd numbers.   Summer vacations are also an issue that must be addressed as well.

       Custody fights are far too common and if the custody of your child is at risk, you need to the experience of the Law Offices of Werno & Associates on your side.  We have extensive experience helping parents and the Court work out custody issues and we can help you, too.  Call us today at (714) 542-4466 to find out how we can help you and your child.

How does the Court award custody?

       The Legislature of the State of California has decided that child custody must be awarded based upon the “best interests of the child” standard.  It is also the public policy of California that children have frequent and ongoing contact, with both parents, following a separation or divorce.  It is commonly accepted that a child’s mental health and emotional well-being is best served by maintaining a healthy, consistent relationship with both of their parents.  As such, the Court will encourage both parents to make every reasonable effort possible to maintain a consistent presence in their children’s lives, despite the difficulty that the separation or divorce may cause.  This preference is set forth in California Family Code §§ 3020-3032.

       While historically it may have been true that California favored awarding primary physical custody to mothers, that trend has been largely reversed and today it’s not uncommon for fathers to be awarded primary physical custody and mothers with reasonable visitation.

       There are, however, certain unfortunate circumstances, which the Court will have to consider, prior to making any award of custody, or visitation, and those considerations involve the physical, emotional or substance abuse by either parent.  While there is no stated preference in California law regarding child custody in contested proceedings, it is the public policy of the State to ensure, to the greatest extent possible, that each child will be protected from child abuse and domestic violence and those factors will be a primary consideration when determining which parent a child will live with and what visitation, if any, the other parent will receive.

       Sadly, in highly contentious cases, one or both parents may make serious allegations of physical or sexual abuse against the other parent.  In some cases, those allegations are true, but in many cases those allegations are not and are made simply as a litigation tactic.  As such, there is specific case law that allows the Court to grant significant sanctions, including monetary sanctions, against the party who makes frivolous, unfounded allegations against another parent.  More and more, the Court is taking drastic and definitive action against parents who are trying to bias the Court against another parent, with unfounded and inappropriate allegations.  In reality, an unfounded allegation may have serious and significant consequences regarding an attempt to gain either physical custody of a child, or visitation with a child and may ultimately make the difference in whether, or not, a party gets custody of visitation.

       How does the Court determine what is in the “Best Interests of the Child” The Family Code sets forth a number of factors that the Court must consider when making orders involving child custody and visitation.  In addition to the factors set forth in the Family Code, the Court cannot base its custody decisions on factors such as race, gender or sexual preference and any attempt to do so, is simply inviting an appeal.  In reality, Judges have consistently stated that making decisions regarding which parent (or a nonparent) a child is going to live with, is one of the most difficult decisions a Judge is ever faced with.  In making these decisions, there is a lot more at stake than just where a child is going to sleep.  One common misperception is that the Court is going to give great weight to the financial resources of one parent over the other and that is simply not the case.  Being poor is not a crime, and often times, a parent who makes substantially more money than the other parent, does so at the expense of actually being able to spend significant quality time with their child because of the demands placed upon them by their employment, which is, of course, necessary to generate the very income that they want the Court to consider.

       In practice, every Judge will place a different value on each of the various factors that have to be considered, and will most likely rely heavily on their experience and gut instinct, when making a decision about what is in the best interest of a child.  Moreover, in cases where each parent is keenly intent on obtaining primary physical custody, the Court may order that the parties (and the children, grandchildren, boyfriends, girlfriends and other related people) be evaluated by a psychologist appointed under the provisions of California Evidence Code § 730.  This is typically a significant step, in that it will usually cost the parents several thousand dollars, and can take several months to complete.  Usually, one of the parties will ask the Court to appoint a 730 evaluator and in doing so, the Court will often order that party to pay some, or all of the fees associated with the 730 evaluation, subject to “reallocation at the time of trial,” which means the Court retains the right to shift some or all of the costs to the other party at a later date.  There is a lot of strategy involved in choosing a 730 evaluator, because like all people in life, some evaluators are good in certain circumstances and very bad in others.  Some evaluators seem to favor men, while others seem to favor women.  In all cases, the recommendations made by the evaluator will carry great weight with the Court and may largely determine the outcome of where your children will live and what visitation the other parent may have.  As such, having an experienced law firm like the Law Offices of Werno & Associates on your side may prove to be one of the smartest decisions you ever make.

       Additionally, in some cases, usually where the children involved are old enough to be able to express some sort of mature opinion, the Court may also, after a request by one of the parents, appoint “minor’s counsel” to represent the children, so that the children’s preferences and opinions can be presented to the Court.  Historically, the use of minor’s counsel has been a hit or miss exercise and has lately fallen out of favor for that reason.  In some cases, minor’s counsel have been invaluable in assisting the Court in reaching some determination, and in other cases, minor’s counsel was of no help at all.  In almost all cases, one or both of the parents end up paying for yet another attorney to help them resolve their differences and this in turn substantially increases the ultimate cost to resolve their child custody issues.  As such, there has been a recent trend away from using minor’s counsel in all but the most serious cases.

       A recent change to the California Court Rules (Rule 5.250), implemented as Family Code § 3042, has made it clear that if a child of 14 years or older makes known their desire to address the Judge regarding decisions being made about the child in a particular case, that the Court must accommodate the child’s request and speak with the child (Rule 5.250 and Family Code § 3042 are discussed in greater detail below).  It remains to be seen exactly what kind of an effect this will have on Court cases in general and it is suspected that the result will be different on a case-by-case basis as some Judges have expressed significant concerns and trepidation about interviewing children under the new rules.  If a child has not yet reached their 14th birthday, it is clear that the Judge does not have to speak with them, and in all likelihood, may not.

What is Mediation and why do I have to attend?

       In all cases where one or both of the parents are asking the Court to make a decision regarding custody and visitation, the parties will first be ordered to attend mediation.  This type of “mediation” is different from Divorce Mediation (also known as a collaborative divorce), which can also address issues of child custody and visitation, but in this context, it is a process that the Court will require the parties to undergo according to the provisions of Family Code § 3170.  § 3170 (a) states that “If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.”  For information on Divorce Mediation, rather than Court ordered child custody related mediation, please click here.

       This kind of mediation can be a good thing, but it can also be a bad thing as well.  In reality, the Court is hoping that by ordering the parties to meet with a court employee, often someone with a Master’s degree in psychology or social work to discuss the specific custody or visitation request, that some parties will be able to reach an informal agreement, thus lessening the ultimate workload and burden on the Court.  Whether or not an informal agreement is reached, a Court appearance may still be necessary, so that any informal agreement that was reached can be made a formal Order of the Court or if no informal agreement was reached, so that the Court can have an actual hearing to make a final decision regarding the custody and / or visition request.

       In some counties, such as Los Angeles and Orange, what happens in mediation is confidential and if the parties don’t come to an informal agreement, the exact details of the mediation remain confidential and the Family Court Mediator can’t make a recommendation to the Court.  In other counties like Riverside, San Bernardino and Ventura, which are known as “recommending counties,” the Mediator will prepare a formal custody recommendation that is submitted to the Court, which the Court will often adopt, in some manner, in its final ruling.  Because of the importance of mediation and the power of the Mediator, we frequently send our clients to a “Mediation Coach,” so that they can work with a trained professional to hone their skills before the actual mediation takes place.  This might seem like overkill, but because the stakes are so high, we don’t want to take any chances.  Sadly, we have been involved in too many cases where the Mediator made some really bad recommendations, often without having a complete understanding of the true dynamics of the case, which is exactly why we prepare our clients for mediation so throughly.  The reality is that whatever the Mediator says, whether it’s a formal recommendation, or not, will have some weight with the Court and in many cases, it may actually make the difference in where a child ends up living and what visitation the other parent might have.  In reality, if you get a bad mediation report, you are going to have a serious problem on your hands that may not be easily corrected.  As such, we believe that it’s better to be over prepared than under prepared, especially since you won’t get a second chance to make a first impression.

       In most cases, unless there are issues involving Domestic Violence or restraining orders, both parties will meet with the Mediator at the same time.  If one of the parties is physically uncomfortable meeting, usually in a small room, with the Mediator and the other party at the same time, it is possible to ask to meet separately and in some instances, like when one of the parties lives out of state, or a great distance away from the Courthouse, it may be also possible to appear at the mediation appointment by telephone.  If you would like to meet with the Mediator separately or you need to appear telephonically, you should make that request in advance.

How old does my child need to be to decide which parent they want to live with?

       It all depends.  In reality, a minor child cannot make any definite decisions about where they want to live until they reach their 18th birthday.  Until they turn 18, they can only state their preferences. Once a child turns 14, they have the right to address the Court to tell the Judge where they want to live and the law says that the Court must give “serious consideration” to their preferences.  Depending on the age and maturity of each particular child, the Court may give more weight, or less weight to their stated preferences and will typically give significant consideration to whether or not the child appears to have been coached and whether their request to live with a particular parent is based upon mature consideration or other factors, such as the parenting style of a particular parent.  In a best case scenario, this is a difficult situation because while a teenager may think that they know what they want, often times what they want is definitely not in their best interests.

My child refuses to visit the other parent, do I have to make them?

       Technically speaking, a “child” under the age of 18 does not get to make decisions, however, in reality it all depends on the age of the child.   On January 1, 2012, the California Judicial Council adopted California Rules of Court Rule 5.250, which is titled: Children’s participation and testimony in family court proceedings.  

Rule 5.250 specifically states, in part that:

(a) Children’s participation.

This rule is intended to implement Family Code section 3042.  Children’s participation in family law matters must be considered on a case-by-case basis.  No statutory mandate, rule, or practice requires children to participate in court or prohibits them from doing so.  When a child wishes to participate, the court should find a balance between protecting the child, the statutory duty to consider the wishes of and input from the child, and the probative value of the child’s input while ensuring all parties’ due process rights to challenge evidence relied upon by the court in making custody decisions. …

Family Code § 3042 states, in part that:

(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation. 

(b) In addition …, the court shall control the examination of a child witness so as to protect the best interests of the child. 

(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests.  In that case, the court shall state its reasons for that finding on the record.

(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child’s best interests.

(e) If the court precludes the calling of any child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child’s preferences.

       In practice, once the child reaches approximately 14 years of age, the Courts have indicated that they are not going to force the child to visit their noncustodial parent against their express wishes.  Sometimes, this can lead to significant drama (armed police showing up at your house on visitation day to try and compel visitation), harsh feelings, threats of contempt actions, future Court appearances and sadly, potentially irreparable harm to the parent-child relationship.  In response, the Court may order the parents and the child into counseling or to be involved in reunification services, or make some other effort to salvage the relationship.  It really all comes down to how motivated your Judge is to try and help.  During these times, both parents need to take a long hard look at whether their teenager is going to be even more harmed by additional alienation from the parent in question or helped by being encouraged to maintain a relationship with their estranged parent, which hopefully, with time and assistance, will become healthier and more beneficial to your child.  It’s a tough call either way and given the emotional roller coaster that many teenagers are on to begin with, one that you have to carefully manage.  It is also a good time to consider getting some professional help because after all, your sanity and your child’s emotional well-being may be at stake.

       We know that making decisions about your children can be a really difficult and stressful time.  Let us help, it’s what we do.  You can reach The Law Offices of Werno & Associates at (714) 542-4466 and consultations are always free.

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