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Hello everyone, I’m Dr. Michael Mantell with another edition of Family Law Matters. And as always, I’m delighted to be here with Bonnie Rabinovitch Mantel, owner and managing partner of the very esteemed Primus Family Law Group. Hi Bonnie.

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Hi Michael, how are you doing today? Terrific, very well, thank you. And you? I’m doing all right. Bonnie, you are described as relentless and formidable.

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And I can’t imagine an area of law, family law practice, where those two words, relentless and formidable, come into play more than when it comes to paternity issues. Is this my child? What are my responsibilities? What are my rights? Talk a little bit about how we see that today. Well, in California, when two people are not married, there’s no presumption that the child belongs to the male or the, right, because they can only be certain of female.

(1:15 – 1:38)
And at the hospital, the staff will ask for the parties to sign a voluntary declaration of paternity. We call that a VDOP. Most of us who’ve had children have no idea what we’ve signed at the hospital, why we signed it, whose name we put on the birth certificate.

(1:38 – 2:01)
I mean, literally, and it’s a busy time. So when they come to us, a lot of our clients who are in a situation where they’ve had a child with somebody who, and they’re not married to it, to that person, don’t have that document. If they do, it’s an immediate judgment of paternity.

(2:01 – 2:08)
There’s no question. We’re good to go. Then, you know, the responsibilities start and the rights start.

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If we don’t have that document and somebody’s interested in filing for paternity, it can be either the mother or the father. It doesn’t have to be just the father who files. It’s similar, it’s requesting the court acknowledge this person is the father of the child.

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And if there’s no dispute, usually we get that done pretty quickly. It’s some forms, there’s no hearing usually required if everybody agrees. But then it’s the issues of custody, visitation and support.

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And so all of the things that Michael, you and I have discussed when it comes to divorces and legal separations when they’re married and have children is the same line of things we have to do with respect to out of wedlock births. What’s the battle like when it’s contested on both sides? You are the father. No, I’m not.

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Hey, I am the father. No, you’re not. What’s that battle like? What’s nice about that situation is there’s an easy way to figure it out.

(3:19 – 3:42)
There’s a thing called the DNA test. So usually if somebody is refusing to get one, you have to file a motion and then you go to court and the judge will order you to get one. I’ve actually had situations where they try to bring in another baby or they try to, you know, things to get either out of being the father or out of the other person being the father.

(3:43 – 3:52)
And that never works. It always comes to light because it’s, you know, it’s DNA. I mean, there’s enough television programs for us to know that it’s pretty definitive.

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So- Can a judge ever say to a man, you don’t have to have a DNA test? Does the judge ever do that? If somebody is requesting it and there is the issue of support and visitation, no. What is interesting and we can get into this at another time is you can be the biological father of a child and be denied paternity regardless. We’ll get into that another time.

(4:24 – 4:40)
Yeah, it’s when there’s another person who’s presumed to be the parent. And there’s no, so we’ve had those as well where you have somebody who wants to get involved but it’s too late. It’s somebody else’s that child’s parent and it’s interesting.

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What about later in a child’s life, not at birth? Later in life, it comes out that the, that there is responsibility for that child. Be careful with those words, Michael. Okay.

(4:57 – 5:16)
There’s no responsibility for the child until you’re determined to be the child’s parent. So what happens if this paternity issue doesn’t occur until a child’s a bit older, four, five, six, seven years old? Well, it depends. Four, five, six or seven is different procedurally.

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You have up until two years to contest paternity. So if somebody else has been part of that child’s life and been the child’s parent, you can’t then go ahead and contest paternity. And then you have, I think an outside of seven years total to address the issue.

(5:39 – 5:53)
That’s why I chose those years. Bonnie, I have a question. What happens if a father comes along at a young child’s age and says, listen, I have an announcement to make.

(5:53 – 5:59)
I am not this child’s father. Here’s my DNA to prove it. But you have been.

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It depends on time. If he’s been the father for a period of time that exceeds the statute, he becomes the presumed parent. And he can, I mean, he can destroy that child’s psyche if he really needs to, but he is going to be held to that child’s parent and being that child’s supportive factor as well.

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Now, what about with the advent of 23andMe and all these other genetic DNA kinds of apps that are out there. And we hear stories all the time where someone says, I come to find out that my father is not who I thought he is. He’s a sperm donor that was in medical school and 25 years ago, this is what happened.

(6:49 – 6:56)
That’s my fault. Too late. I mean, you can always go and find your birth parent or your biological parent.

(6:56 – 7:14)
It’s not gonna change the law as to who is recognized as your parent. Now, the family may get together and say, okay, this is what we’re gonna do regardless of the strict letter of the black and white law. And you can make, but the law is going to recognize that person as a parent.

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We are in a situation today where you are able to have more than two parents. And I don’t just mean you get married again. I don’t mean step-parents.

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I mean, you have a biological parent and you have what is known as a presumed parent because that parent has been your parent for seven, eight years. And this one now wants to be involved. And there’s a legal, they’re not gonna take away the parenthood from that presumed parent because that benefits the child.

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They just may add a parent. Does the child have a right to always know who his or her father is? No. Sorry for that blunt answer.

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No. I mean, it’s, no, not yet. I don’t, that’s, you catch me a little bit off guard because I don’t believe the laws have changed regarding that.

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I believe there’s still, they have to be of a certain age. And I remember that the records used to all be sealed, like with respect to adoptions and, but that I don’t personally do adoptions. So I don’t have that for you.

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I work a fair amount with fertility, in area of fertility, infertility. And so we have a sperm donor. That’s the father.

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The child never knows about that. One day the father comes knocking on the door. Hey, I’m your father.

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Does that child have a right to know that? And you’re saying not necessarily. Well, usually it is, this I do know as a sperm donor, they sign a specific contract that precludes them from saying anything, doing anything, reaching out. They’re not, they waive all of their rights to that potential child, right? They don’t know, but they waive all of their rights.

(9:07 – 9:55)
So they are not, that is a problem for them if they go ahead and knock on the door. You pride yourself and all of your teammates at Primus Family Law pride yourselves on moving clients through the process of paternity issues, divorce, whatever it might be, as positively and as efficiently as you possibly can. Is paternity one of the rockier areas in your practice? You know, it’s different because you’ve got two people who don’t wanna be together, not because they’ve grown apart, but because they never, you know, this is a child, they weren’t planning to get married.

(9:55 – 10:12)
They weren’t planning to make a long-term, necessary commitment to each other in a lot of these paternity cases. You’ve got couples that have been together, you know, four, five, six years, they have children and then they get, they separate and they break up. And it’s still a paternity case, even though it’s been that long.

(10:12 – 10:44)
But it’s different because in paternity cases, the father has to fight for those rights because it starts out completely favoring mom. And so it’s dad who’s gotta show, this is what kind of visitation I’ve already had or the kind of involvement. I don’t say visitation with your own children, it sounds like you’re babysitting, but you know, this kind of involvement with your children, how involved they are with school, their daily routine, what they did.

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These are all very important. And a judge is gonna look at that because again, I’ve said this countless times, the overarching interest is the best interest of the children. So if these children, these are their parents, this is what they’re doing.

(10:58 – 11:20)
The chances of it being as efficient or as understood as a divorce case is the same because it’s the best interest of the children. We are trying to give the children the stability and the continuity, the frequency with both parents. Where it gets murkier is when the child is young.

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And you’ve got a paternity case where you’ve got a child that’s breastfeeding, tends to favor mom because the child needs to be with mom more. Dad’s not necessarily in the house because either they’ve broken up or it was just one of those things. So you’ve got a situation where mom feels like she’s got a lot more control and wants control.

(11:44 – 12:00)
And I did wanted this child and this was not gonna be a joint situation. And that’s when the litigation is a little bit more interesting. Real life case, not yours, but a real life case.

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Man and woman are married and the woman has had a full life experience with a little fling on the side and she becomes pregnant. The husband really has always had in the back of his mind that something’s going on with her but has put it out of his mind. Never really thought that this was true.

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The child is now three years old. The mother dies. Oish.

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Oish is right. This is real life. The mother dies.

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A friend comes along and whispers in the father’s ear, little baby is not yours, it’s his. They come to find out it really is the other guy’s. What’s the paternity issue in that case? Okay, so there’s a few.

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We have in California when you’re married and a child is conceived and born during the marriage, it’s presumed to be the child of the parents, the child of the married couple. So you’ve already got now married dad, not bio dad. Married dad is presumed to be this child’s parent.

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Now he’s also held this child out to be his own. This is my son, daughter. I’d like you to meet my son, daughter.

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Oh, look what I bought my son, daughter. We went out, my son, daughter. And so that also seals that deal for the courts that he’s the dad.

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Now bio dad comes in, child’s only three. Bio dad comes in and says, hey, I’d like to be a part. This is exactly what I said to you about there being the ability of having more than one parent, more than one dad.

(13:56 – 14:23)
The court could determine him to be bio dad and still determine dad to be presumed dad. And so then this child could benefit from both dads, but the court has a very strict standard of making sure it’s in the best interest of the children to create this additional parent. Because then it comes along with rights and obligations.

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In fact, what we did in this case, real life, the father- Married father or bio father? The married father agreed to open his heart and let this other man come in and introduce them to the little three-year-old son as a very close friend of the family. And the understanding was that that’s the way they were gonna go on in life. This is a very close friend of the family.

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I don’t know whether they’re gonna, this is ongoing. So I don’t know whether they’re gonna tell that child at some point, my guess is they will, but right now there’s still a lot of grief and confusion and emotion, but paternity is a very, very challenging case. And so if people wanna speak with you more about this, these very trying, difficult decisions, how can they reach you? They can reach us online at www.primisfamilylaw.com or directly at 619-574-8000.

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And you can get on our calendar to speak to one of us for a 30 minute free phone consultation. And I know one of the things that goes without saying is there’s no judgment ever, ever about the behaviors of any adults in these matters. These are difficult matters.

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Thanks very much, Bonnie. We’ll see you next time. Our pleasure.

(15:49 – 15:51)
Have a great one, Michael. You too.