Californian paternity and child support law
April 5, 2011 10:09 PM   Subscribe

California child support filter: Question from a foreign friend with a daughter fathered by an American man.

I'm trying to help a foreign friend understand what a biological parent's obligations are according to California law. Here's the basics of the situation. Names have been changed, obviously.

In the early 1980s Alice, a foreigner, traveled to California and had a brief relationship with an American man named Bob. Alice returned to her native country shortly after. About halfway through Alice's pregnancy she returned to visit Bob in California and made him aware of the pregnancy, but the relationship did not continue beyond that point. The usual nine months after their relationship started, Alice was back at home and gave birth to a daughter, Charlene. Bob was made aware of the birth and expressed no interest in a continuing relationship.

Alice raised Charlene as a single mother, balancing career and childcare obligations throughout the 1980s and 1990s. She never attempted to go after Bob for child support, and never asked anything from him. The child support / paternity test / legal process that existed in California in the 1980s was never engaged. Charlene grew up as a citizen and native of her mother's native country, and has never claimed her American citizenship, though it would not difficult to do so (iirc, children fathered by American men anywhere in the world are considered American citizens, correct?). Charlene has never met Bob and has no desire to have a relationship with him.

Charlene has several half-brothers and half-sisters raised by Bob and another partner, Debra, in California. These half brothers and half sisters grew up in a much better socioeconomic situation than Alice could afford to provide on a single working mother's salary.

In hindsight, Alice realizes that she could have provided Charlene with a much greater quality of life and education during her childhood if she had pursued child support from Bob. Alice went into significant debt to afford Charlene's university education. Charlene is now an adult. Moral questions aside, under California law, does Alice have any grounds to pursue Bob for child support that was never collected in the 1980s and 1990s? Can Alice and/or Charlene together use California law to compell a paternity test from Bob if the person in question (Charlene) is no longer a minor?

You are not my lawyer, you are not Alice or Charlene's lawyer, etc. But anything citing links to California legal code or case law precedents would be helpful.
posted by thewalrus to Law & Government (6 answers total) 2 users marked this as a favorite
Seem a long shot. IANAL, but Alice will have to pass these many legal obstacles:
1. Prove the child citizenship to establish jurisdiction. From, the child citizenship based on citizenship of one parent is not certain. There are varying restriction depends on what law (passed at different time) applied, including residency requirement of the child. Furthermore, because the child was born out-of-wedlock, proving relationship will require a paternity action.

2. A paternity action. Proving paternity against a non-cooperative father will require a lawsuit, a judge, and enforcement.

3. Even after paternity is proven, establishing retroactive responsibility and collecting past child-support may be difficult. You ask that the child-protecting service to open a retroactive case for a child who is now an adult. Statute of limitation may come into play. Then, even if you win child-support, to collect, you will have to find his separate property (what part that isn't also belonging to his wife and children) and sue to enforce the judgement. Else, you can garnish his wage (but only up to a certain percentage, as others in his family can claim his wage too).

Lots of laws/lawyers + foreigner status = lots of money. I doubt it will be worth it to pursue; but again, IANAL.
posted by curiousZ at 12:11 AM on April 6, 2011

This really is something a family law lawyer in California can help your friend with. There's lots of variables. Some of the family law code regarding paternity and child support are for children who are California residents. The adult child is not a California resident. Although there may or may not be a statute of limitations for paternity (some family law sites the statute of limitations is 3 years after the kid's 18th birthday, others say there is no statute of limitations), the back child support ship may have sailed. The laws were designed to provide support to the children and that stops on the child's 18th birthday (unless the child is disabled).

Alice really should have pursued getting child support 20+ years ago.

children fathered by American men anywhere in the world are considered American citizens, correct?
Not exactly.

With an American citizen as a parent, it would be easier for the child to be naturalized than some random non-American, but it isn't automatic and would probably require participation from Bob. And it would have been mucho simpler back when the kid was a minor (the kid could be a permanent resident sponsored by dad and get citizenship on her 18th birthday).

Here's a link to the California Courts pages on paternity. Here's a link to the CA Dept of Child Support
posted by birdherder at 12:13 AM on April 6, 2011

Having gone through the process to establish my son's eligibility for U.S. citizenship, I can tell you that:

a) It is not as automatic a process as one might hope, even for a U.S. citizen mother. The requirements for establishing the right to citizenship through a U.S. citizen father are even more convoluted. The USCIS has a page about Biological or Adopted Children Residing Outside the United States.

From that page (I've made bold the sections that I think make Charlene's case difficult): At least one parent is a U.S. citizen or, if deceased, the parent was a U.S. citizen at the time of death.
The U.S. citizen parent or his or her U.S. citizen parent has (or at the time of death had) been physically present in the United States or its outlying possessions for at least 5 years, at least two of which were after attaining the age of 14.
The child is under the age of 18 years.
The child is residing outside of the United States in the legal and physical custody of the U.S. citizen parent (or, if the citizen parent is deceased, an individual who does not object to the application).
The child is temporarily present in the United States after having entered lawfully and is maintaining lawful status in the United States.
An adopted child may be eligible for naturalization under section 322 of the INA if the child satisfies the requirements applicable to adopted children under sections 101(b)(1)(E), (F) or (G) of the INA. See the “INA” link to the right.

To qualify as a “child” for purposes of this section, the person must be unmarried. Also, a person who was born out of wedlock (meaning that the parents were not married at the time of the person’s birth), must be “legitimated” while under the age of 16 and while in the legal custody of the legitimating parent. See section 101(c)(1) of the INA.

I am not a lawyer, so there may very well be ways around these problems, but it sounds like the opportunity to gain US citizenship via relationship with Bob may be gone. I hope a lawyer can give your friend a workaround, but it doesn't look very likely to me.
posted by bardophile at 1:38 AM on April 6, 2011

IANAL, but it appears that under California law, an initial application for child support can be made retroactive for a maximum of 3 years prior to the date of filing, and children born before 1989 are flatly ineligible for retroactive child support.
posted by SomeTrickPony at 4:05 AM on April 6, 2011

I'm not certain that California law would apply. The child was never a resident there, after all. IANAL, but I would bet that child support laws in the country the child was a resident of would apply instead.

To give an example - My son's mother once abandoned him with me. It was supposed to be a weekend visit, but she disappeared. After two months, I hired a lawyer to get custody, and the court where I lived would not hear it because the court considered my son to be resident of a state 300 miles away. I had to hire a lawyer there and bring the suit in the state where the child lived, not where I lived.

That court would not let me proceed because she couldn't be served and I didn't know where she was. At 3 1/2 months she showed up at my house with the cops and claimed I had kidnapped the boy. They didn't believe her, but still made me give him over. She disappeared again and it was 8 months before I got to see my son again
posted by Pogo_Fuzzybutt at 7:52 AM on April 6, 2011

I think Bardophile's right, although the rules are different for children born before 1986 (as I take it Charlene was):

A child born out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under the former Section 301(a)(7) of the INA as made applicable by the “old” Section 309(a) of the INA if the U.S. citizen father, prior to the child’s birth, had been physically present in the United States or one of its outlying possessions for ten years, five of which were after the age of 14, and if the paternity of the child had been established by legitimation prior to the child reaching the age of 21.

Charlene is over 21 - sounds like game over to me, though IANAL.
posted by dd42 at 10:15 AM on April 6, 2011

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