Can a new mother file for California child support if the father wasn’t aware he had a child?
The general answer is: it depends.
Kyle and Lilly were married for five years and throughout their marriage, the pair were unable to conceive a child. During their fifth year of marriage, they decided to pursue in vitro fertilization (IVF). The process was nearly complete, pending artificial insemination, but the two fell out of love and divorced. Their legal and physical separation left the embryos stored dormant for 2 years in the fertility clinic.
California law requires individuals using IVF to sign a Consent and Agreement form (Consent Agreement) that sets forth advance written directives regarding the disposition of embryos.
For those unfamiliar with the medical terminology, let’s discuss.
IVF = In Vitro Fertilization is a process of fertilization where an egg is combined with sperm outside the body, “in vitro.” IVF is a complex series of procedures used to treat fertility or genetic problems and assist with the conception of a embryo.
Embryo is an early stage of development of a multicellular diploid Eukaryota organism. In general, an embryo develops from a zygote, the single cell resulting from the fertilization of the female egg cell by the male sperm cell.
Per their Consent Agreement, the parties shall both sign a waiver prior to transfer.When legal documents state “the parties” that means all participants or both parents. In this case, Kyle and Lilly are required to sign the waiver.
Three years have passed and Kyle has moved on with another woman. Lilly has also moved on but remained single. She becomes lonely and decides to have a baby. Instead of choosing an anonymous donor, she decides to use her embryo with Kyle.
Lilly forges Kyle’s signature on the waiver and successfully delivers a baby girl named Kylie. When Kylie turns one, Lilly decides she wants to work less to spend more time with her daughter but is unable to financially provide for the both of them.
Lilly decides to file for child support in her local family courthouse. Can she do that? Is that legal? Would Kyle be required to pay child support for a child he consented to but also didn’t consent to? Confusing isn’t it.
A contract is a legal agreement between parties which establishes obligations for the parties. When a party to a contract fails to act as promised, this is considered a breach of contract.
In California, the statute of limitations for a breach of contract terms depends on whether it was an oral or written contract. A person has two years from the breach or recision of the contract to file a valid claim. General written contracts have up to four years’ time from the breach or recision of the contract date.
Was Lilly subject to a breach of contract with Kyle? In the general sense yes. Both formed this oral and written agreement while they were married progressing towards starting a family.
Lilly was single and not in a relationship with Kyle when she pursued artificial insemination based on a fraudulent signature of the other participating party.
Fraud is using deceit or dishonest means for the purpose of depriving another of money, property or a legal right.
Lilly was in clear violation of Kyle’s legal rights to bring life into this world. Lilly would argue Kyle already agreed to bring life into this world when the embryo was formed. While this is correct, there is an element of additional consent, the waiver, that needed Kyle’s final approval through his legal signature. Kyle was deprived of that opportunity and Lilly willingly fraudulently signed on his behalf, without him knowing.
Fast forward to the present, Lilly is in line at Sacramento County Superior Court Family Relations Department waiting to submit paperwork requesting child support from Kylie’s father.
While this may sound simple, it’s a little more complicated and this is where a family law attorney is beneficial. Since Kyle and Lilly received a judgment for their dissolution does Lilly use the same case number or does she start a new case? The reason this is important is based on a minor that is not part of the previous marriage? Does she re-open her divorce to pursue a child support case or will she start a brand new case of child support? Consulting with a family law attorney will answer this question.
In California, child support is the amount of money that a court can order a parent or both parents to pay every month for the expense of raising a child. A judge determines the amount of child support based on a state-wide guideline and will issue a child support order.
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