Mother Refusing Paternity Test

MJ3408

New Member
Jurisdiction
California
Recently divorced. Wife had a second child, while we were separated (but still legally married)Judgment states that ex-wife must obtain paternity test within 10 days of the judgment. It's been a month and she hasn't done it yet. I followed up with a letter asking her to comply, still no response. What should I do next? I don't want to owe thousands in child-support, for a child I've never met (and lives with her and her new boyfriend), but I believe that in California I am, legally, the father unless it's proven otherwise.
 
How was your divorce completed without settling the matter of children who are a product of the marriage?
Do you have an attorney? If not, then you may wish to contact one to assist you with enforcing the judgment.
 
What should I do next?

Hire a lawyer for $2,500 (give or take) to ensure she takes the DNA test to avoid 18 years of child support approximating $75K, maybe more, likely much, much more!!!
 
How was your divorce completed without settling the matter of children who are a product of the marriage?
Do you have an attorney? If not, then you may wish to contact one to assist you with enforcing the judgment.
Requested/Received Bifurcation after (1) year+ trying to get her to obtain it.
 
Judgment states that ex-wife must obtain paternity test within 10 days of the judgment. It's been a month and she hasn't done it yet. I followed up with a letter asking her to comply, still no response. What should I do next?

You or your attorney should send a letter to her or her attorney stating that, if she doesn't do what she's obligated to do under the judgment by such and such date, you will seek to have her held in contempt of court. Of course, that assumes you have done what you need to do with respect to the paternity test.

I don't want to owe thousands in child-support, for a child I've never met

Did the divorce judgment order you to pay support for this child? Or was that issue reserved pending completion of a paternity test?

I believe that in California I am, legally, the father unless it's proven otherwise.

That may or may not be correct. The presumption that a child born to a married woman is the child of her husband only applies if the mother and her husband were cohabiting at the time of conception. Fam. Code section 7540. You told us that your ex-wife "had a . . . child, while [you] were separated." I assume that means the child was born after you separated but before entry of the divorce judgment. Correct? Were you also separated 40-ish weeks before birth (i.e., around the estimated date of conception)?
 
She was having a relationship with, at least, 2 people at the time of conception.

FWIW, I asked four questions in my prior response, and this isn't responsive to any of them (although it does raise a couple new ones).

Did the divorce judgment order you to pay support for this child? Or was that issue reserved pending completion of a paternity test?

You told us that your ex-wife "had a . . . child, while [you] were separated." I assume that means the child was born after you separated but before entry of the divorce judgment. Correct? Were you also separated 40-ish weeks before birth (i.e., around the estimated date of conception)?

"A relationship with, at least, 2 people at the time of conception"? As in a single relationship with multiple people? Or multiple relationships? Were you one of the "at least, two men"?
 
Sorry, but it wouldn't let me post my replies (for unknown reasons).
All matters, regarding children, were reserved until a future date.
Even though separated, we had made a commitment to remain monogamous , while we were trying to work out our differences. However, she continued her affair during this time.

She was pregnant, when we filed the Petition for Legal Separation and she acknowledged this other relationship, in the Petition. We were not granted, either a Legal Separation, nor a Divorce, until after the child was born. So, it is 'possible' that I could be one of, at least (2), possible fathers.

 
Even though separated, we had made a commitment to remain monogamous , while we were trying to work out our differences. However, she continued her affair during this time.
Let me try to ask the question more simply:

Were the two of you living together at the time she got pregnant?
 
So, it is 'possible' that I could be one of, at least (2), possible fathers.

If you were separated, you can ONLY be the baby's father, if you were separated by WORD and not by DEED.

I suggest you hire an attorney to ensure that the woman, the baby, and you undergo genetic testing to determine if you are the male progenitor required by the female progenitor to create a human life.

Seven Steps to Determine Paternity In California

1 = Retain an attorney.
2 = The process for determining California paternity can sometimes be very complex.
3 = You will file a Petition.
4 = The Respondent will be served with a Summons and a copy of the Petition.
5 = The court orders a Pretrial Hearing.
6 = The court requires the male(s) and the female to undergo genetic testing.
7 = The test determines UNEQUIVOCALLY if you are, or aren't the father.

I suggest you read what your CA court has to say about court ordered paternity testing:

Answering a Request to Establish Parentage in Court - paternity_famlaw_selfhelp

Parentage (Paternity) - paternity_famlaw_selfhelp
 
If you were separated, you can ONLY be the baby's father, if you were separated by WORD and not by DEED.

I suggest you hire an attorney to ensure that the woman, the baby, and you undergo genetic testing to determine if you are the male progenitor required by the female progenitor to create a human life.

Seven Steps to Determine Paternity In California

1 = Retain an attorney.
2 = The process for determining California paternity can sometimes be very complex.
3 = You will file a Petition.
4 = The Respondent will be served with a Summons and a copy of the Petition.
5 = The court orders a Pretrial Hearing.
6 = The court requires the male(s) and the female to undergo genetic testing.
7 = The test determines UNEQUIVOCALLY if you are, or aren't the father.

I suggest you read what your CA court has to say about court ordered paternity testing:

Answering a Request to Establish Parentage in Court - paternity_famlaw_selfhelp

Parentage (Paternity) - paternity_famlaw_selfhelp

@army judge - you should re-read the thread.

In your list above, #7 should be that the parties comply with the court ordered testing and #8 should be "The test determines UNEQUIVOCALLY if you are, or aren't the father."

The OP has already completed step 6, but the mother won't comply with the court ordered testing. The OP is asking how to compel the mother to abide by the court order.
 
Not living together, but not legally separated, and still maintaining a relationship

Thanks for answering that. It appears that the presumption of paternity, as @zddoodah pointed out, is not automatic, however, it's quite likely irrelevant at this point, as the court has already ordered the testing. Do you have an attorney? If so, then you need to speak to that attorney about your options. If not, then you may need to research the method for filing a motion for contempt, or some other appropriate motion.

Re-read Mother Refusing Paternity Test - specifically, the first paragraph.
 
Not living together

Ok, now that you've finally answered this question:

I don't want to owe thousands in child-support, for a child I've never met (and lives with her and her new boyfriend), but I believe that in California I am, legally, the father unless it's proven otherwise.

That is not correct. Family Code 7540(a) clearly states that the presumption of paternity only applies if "spouses [are] cohabit[ing] at the time of conception and birth." Since you were not cohabiting at either point in time, there is no presumption.

The issue isn't quite as moot as "Zigner" suggested because, without the presumption, you should only be made to pay child support if there is a conclusive paternity test. Ultimately, if the mother doesn't do what she's been ordered to do, you should be off the hook. You should also be off the hook for any support retroactive to the point in time when the test results are known. Of course, if you're interested in parental rights, then you'll want to try and enforce the judgment.
 
Ok, now that you've finally answered this question:



That is not correct. Family Code 7540(a) clearly states that the presumption of paternity only applies if "spouses [are] cohabit[ing] at the time of conception and birth." Since you were not cohabiting at either point in time, there is no presumption.

The issue isn't quite as moot as "Zigner" suggested because, without the presumption, you should only be made to pay child support if there is a conclusive paternity test. Ultimately, if the mother doesn't do what she's been ordered to do, you should be off the hook. You should also be off the hook for any support retroactive to the point in time when the test results are known. Of course, if you're interested in parental rights, then you'll want to try and enforce the judgment.

Thanks for the correction.
 
Not living together, but not legally separated, and still maintaining a relationship

Oh my goodness, mate.

Never allow yourself to give in to any temptation.

Had you simply remained strong and aloof, you could safely say what this guy said and mean it:


Bill Clinton--"I did not have sexual relations with that woman"
 
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