Waiver of Paternity?

Can Parties in California Waive Their Right to Paternity?

The simple answer in no! Long ago the court declared that the “[p]arents have no right, in California, to waive or limit by agreement a child’s right to support.” Kristine M. v. David P., 135 Cal.App.4th 783 (2006). As the court went on to declare,

"our Legislature has declared a “compelling state interest in establishing paternity for all children. Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits including… social security, health insurance, survivors’ benefits, military benefits, and inheritance rights.”
(§7570, subd. (a).) And, as Our Supreme Court recently explained, “[b]y recognizing the value of determining paternity in section 7570, the Legislature implicitly recognized the value of having two parents, rather one, as a source of both emotional and financial support...

Id. at 788. These are not abstract interest and therefore “[n]ot surprising [then that] public policy prohibits a parent from waiving or limiting by agreement, a child’s right to support.” Id. at 789. Circumstances change. In conclusion, the Court of Appeal in Kristine M. observed,

…parents have a fundamental liberty interest in the custody, care, management and companionship of their children. Given the supremacy of these familial rights—of the child and of the parent—a decision to terminate parental rights is one of the gravest a court can make. Thus it is only under specified circumstances, and upon specific findings that include the interests of the child, that a court has authority to terminate parental rights. These circumstances are confined to special proceedings related to implementation of permanent plans in dependency cases (Welf. & Inst., Code, § 366.26), actions to declare a minor free from parental custody and control (§ 7800 et seq.) and adoptions (§§ 7660 et seq., 8600 et seq.).

Id. at 791. Likewise, as the court observed in In re Marriage of Jackson, 136 Cal.App.4th 980, 990 (2006), “[a] court cannot enter a judgment terminating parental rights based solely upon the parties’ stipulation that the child’s mother or father relinquishes those rights.” The court continued,

The welfare of children is of interest to the state. The Legislature has fixed the period within which such powers may be exercised by the courts as that of the minority of the children, and it is not within the power of the court to fix a shorter period. In every decree of divorce which has provisions respecting the custody and support of children the law becomes a part thereof and the decree is subject to the further order of the court, whether or not it is so stated…

Id. (see also In re Lambe & Meehan, 37 Cal.App.4th 388, 390 (1995) (“We hold parents cannot agree to divest the family law court of jurisdiction over a support order for an adult indigent child.”)

In short, parents can agree to whatever they want. And even if the court enters that as a judgment, if it divests the child’s right to support from a parent, it violates public policy and future courts ought not to give it any effect.

So is there no way for two parents to agree to terminate the rights of another parent? There may be. There may be a situation where the other parent has abandoned the child and termination of rights would be in the best interest of the child. Additionally, it may be in the best interest of the child to have a stepparent adopt the child. One thing that is certain though is that these are complicated issues (see the Michael Jackson case above) and the parties, and more specifically the child will be well served by proper individualized advise.

Law offices of William Edgar handles paternity cases throughout Southern California and we have offices located in Riverside, Temecula and Anaheim. Call today for a free consultation (951) 684-6885.

Categories: