Legal Question in Family Law in California
before we were married, my husband was sued for paternity by a woman he had a casual affair with (1 encounter) about 10 years ago. during the course of the court proceedings, she dropped the suit due to becoming "engaged", and then resumed when the engagement was broken off. my (now) husband agreed to dna testing at the time, and expressed a desire for custody should the child be found to be his. however, the woman then dropped the suit again and refused to show up for dna testing after the baby was born (at the time my husband lived in WA, and she was in CA - he was arranging to fly to CA for testing). My question is, can she come back and resume a paternity suit now (child is now 9 or 10) and would my husband be liable for retroactive child support - even if she refused dna testing? we are in california.
2 Answers from Attorneys
The right to child support belongs to the child and therefore nothing she can do can terminate the right to bring the action. However, the child support can be retroactive to the date that the motion or action for child support was filed. If the other actions were dismissed, then a new action must be filed. An adult child could file an action to determine inheritance rights, but you would need to talk to a probate attorney to get more information on that problem. Also, I think any will of your husband should mention the child and leave the child nothing, assuming that is his intent, but again talk to a probate or estate planning attorney about that. Good Luck, Pat McCrary
I agree with Mr. McCrary. She could legally file another paternity suit.
With respect to retroactivity, California Family Code section 4009 provides that an original child support order can only be made retroactive to the petition or motion for support. "An original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading. If the parent ordered to pay support was not served with
the petition, complaint, or other initial pleading within 90 days after filing and the court finds that the parent was not intentionally evading service, the child support order shall be
effective no earlier than the date of service." (Fam. Code, sect. 4009.)
That means her constant dismissals actually hurt her, and the child, because the order would only be retroactive to the date of the petition she carries through with.
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