Legal Dad vs. Biological Dad – Sticky Situation

[lndybird]

My jurisdiction is: CA or NC

My question involves paternity law for the State of: California, possibly NC. Someone familiar with both would be most helpful, but if only one, CA expertise is probably best

Does anyone know the statue of limitations in CA for establishing paternity under the following circumstances:

The child was conceived 5.5 years ago in NC and the biological father was never notified by the mother of her pregnancy.

The mother had been with two men within weeks of the conception, and she and the other man, both knowing this, decided to marry and the child was born during the marriage. That man willingly signed the child's birth certificate and held the child out as his own, even following their divorce 2 or 3 years ago. The legal father has admitted openly that he knew the child wasn't his by the time the child was 18 months old.

Less than one year ago, the legal father obtained a home DNA test that indicated he was not the biological father and the true biological father was notified of the child's existence by the mother. Another home DNA test indicated that the biological father was the natural father of the child.

The child is in CA state jurisdiction as best I know. The mother sought government aid and thus the legal father was ordered to pay child support, and now both are seeking financial support from the biological father, who has known of his child's existence for less than one year and lives several thousand miles away. He and the child have spent the equivalent of 3 weekends together in that time and have had no real means of establishing a relationship, but the child has been informed of the identity of the biological father. He wants what is best for the child, but most law sites don't address the rights of the parties involved in a situation like this.

The mother has indicated that the legal father is "contesting paternity" but she hasn't said if he's filed an action in court or if he's just refusing to support the child he taught to call him "dad." If anyone can speak to the possibility of his being able to contest his paternity at this point, I'd love to know what opinions exist in this forum.

I also understand the child to be in CA jurisdiction after living there for 6 consecutive months, but I wonder if there is any burden of proof associated with that. The mother has lived there with the child since May, but she's lived with friends and relatives and may not have even changed her driver's license to a CA issue, so could jurisdiction be contested, too? She and the child have been enrolled in school there since August, so I'm assuming at least by that point the child would be decidedly in CA jurisdiction, but I don't know.

 

[Duranie]

You are going to have to contact a family law attorney or do some googling to find out what the time frame is to establish paternity. If the child and mother are in CA it would go by CA rules. It is very likely 5.5 years is too long to do anything legally. There is usually a short time frame to dispute paternity. If the legal father knew the child possibly not his then he is probably out of luck. He cannot change his mind years down the road.

 

[lndybird]

Thanks for taking time to respond to me. We actually consulted an attorney in CA last year about this, and she said that because of the amount of time that the child has been taught to view the legal father as his daddy (he's almost 5 now), that the courts in CA probably wouldn't be willing to change his legal status, particularly having willfully signed the birth certificate and chosen to marry the woman full-knowing that there were two men that might be the father. He held this child out as his own even after taking the home test and is only seeking financial relief from the biological father.

I have read that the statute of limitations to contest a "voluntary acknowledgment of paternity" in CA is by the time the child is 2 years of age and after that even genetic testing is inadmissible, but that's an entity unto itself and I'm not sure if signing the birth certificate is viewed in the same light as signing that document although it seems like it would be.

Both the legal father and the mother insist that the legal father is the child's dad, but both are seeking financial aid from the natural father, who was robbed of all opportunity to bond with this child as a direct result of their desire to exclude him. It was truly amazing – it took the legal father less than a month to start emailing the biological father asking for money even though he had willfully excluded him from his own child's life. I'm wondering if the legal father could get away with lying and saying he didn't know about the possibility even though he did? We have evidence to the contrary, but I don't know that we'd have an opportunity to present it if he challenges his legal paternity in court.

I know it seems strange to ask for further advice having already consulted an attorney, but we also spoke with two different attorneys in our state and they each gave us different answers to our questions, so I'm mainly just interested in a second opinion – and third, forth, as much as anyone cares to offer. We have plans to consult a second attorney in CA, but we've been waiting to find out if any paternity actions have been filed by the legal father first and in which state if so. We're of the opinion that there can be no real substitute for the daddy the child has known for the first 5 years of life and that the legal father should remain as such for the child's best interests, but I don't know that we'll even be notified of an action by the courts until he's successfully contested his paternity since that part is really between the legal father and the mother.