Services: Domestic Violence: Resource Manual - Paternity (Section 9)

Family law is complex and changes over time; the information below is accurate, as of the publication date. This manual is intended to provide general information only; it is not a substitute for legal advice from an attorney that is specific to your case.

1. What is a paternity case?

A paternity case is a court case between two parents who were not married when the mother became pregnant and are still not married. If there is a question about who is the father, or if the father denies being the father, the court can order genetic marker tests and then, based upon a positive result, enter an order finding the man to be the legal father. This is called establishing paternity.

2. I wasn't married to my child's father but her father and I both agree that he is the father; does that count?

A verbal agreement is not enough to make him the legal father. Neither is putting his name on the birth certificate. There are two ways to establish paternity:

• Filing a paternity case in court, and having a judge establish paternity.
• Both parents signing an "Affidavit of Paternity form."

Signing an "Affidavit of Paternity" has the same effect as a court adjudication of paternity, except that it may be withdrawn by the father anytime up to 6 months after he signs it. See Question 9 in this Section for more information on establishing paternity.

3. Why would I want to do this?

You might want to file a paternity action to get a court order of custody, to be clear about when and how the father can visit the child, to be sure you get child support for the child, to learn the medical history of the other parent, to make it easier your child to get benefits from the Veteran's or Social Security Administrations, or to make it easier for your child to inherit money from his/her other parent.

4. If this case is only about deciding who is the father of my child, how can he ask for custody or visitation?

In addition to establishing paternity, in a paternity action the court can make orders concerning custody, visitation, child support and other issues concerning the child.

5. Is there any reason why I should not file a paternity case?

You may not want to, and you should talk it over with a lawyer or advocate. If the father does not know where you are, filing a court case against him will notify him where you live and give him the chance to go to court and ask for contact with your child. In addition, the law presumes that the mother of a child born out of wedlock has custody of the child until paternity is established and a court decides that the father has some custody rights.

6. Why do I have to go to court with the District Attorney Family Support Division (DAFS) on a paternity case?

If you are receiving Temporary Assistance to Needy Families (TANF - formerly known as welfare), DAFS can file a paternity case against the other parent for child support. The reason is that the state is supporting the child through TANF and has the right to get reimbursed for those payments by the father. DAFS can arrange for genetic marker testing. The test uses cotton swabs to take cells from the inside of the mouths of the putative father, the mother and the child. (See Question 9 in Section 2 for information on what to do if you are afraid of the father and don't want DAFS to go after him for child support.)

7. If I am in court with DAFS on a paternity case, will the DA get me a custody order also?

No. The DA represents Clark County and the State of Nevada, not you. She is there either to get reimbursement for TANF payments made to you or to get you a permanent child support order and payments. She is not there to establish custody or visitation schedules. If you are in court with DAFS and the father raises custody or visitation issues, the DAFS attorney and the child support hearing master will tell him that he needs to file a Complaint for custody and visitation if he wants to bring up those issues. Similarly, if you want a custody order, you must file a Complaint for custody and visitation.

8. What if the father and I signed an Affidavit of Paternity, but now I don't think he's the father? Can I make him have a paternity test?

Probably, but you should seek legal advice from an attorney.

9. I lived with the father who is listed as the father on the birth certificates of our two children. We never signed any Affidavits of Paternity. If we split up, who has custody?

You do, but note the following: the law presumes that the mother has custody of the children where the parents are not and were not married to each other. "Presumes" just means that he has to go to court and prove to the court that he is their father if he wants to get custody of them. The important thing to understand is that even if you have custody now, custody can change. He can file a complaint to establish paternity himself and try to win custody from you.

10. If there's no court custody order, then I can move out with the children and he can't touch us, right?

You can move out with the children, but he can file a complaint for paternity against you. He can establish paternity and ask for custody or visitation. If you have been living with him, and then take the children so he cannot see them, he will have a sympathetic argument to make to the court about you denial of his parental rights and the children's interest in maintaining their pre-existing relationship with their father.

11. If I leave the state with the children, he won't be able to touch us, right?

Nevada is presumed to be the "home state" of children who have lived here for at least 6 months. If you leave with the children and they lived in Nevada for at least 6 months before you left, their father can file a paternity action against you in a Nevada court (assuming he still lives in Nevada) because Nevada will remain the home state of the children until they have lived in another state for 6 months and it becomes their new home state. The father can ask the court to order that the children be returned to Nevada and it will be very difficult to get another state’s court to make orders about their custody (if you can show a new court that there is an "emergency" such that it should exercise emergency jurisdiction over your children, that court may grant a protection order or some other temporary relief – further discussion of this issue is beyond the scope of this manual. You should just keep in mind that if you move out of Nevada with the children, you run the risk of having a sheriff show up on your doorstep with an order that allows the father to take your children and bring them back to Nevada. See Question 5 in Section 1 and Question 9 in Section 6 of this manual for more information.)

Only you can decide what is best for you and your children. Court orders are serious, and can have a big impact on you and your family for a long period of time. Try to get more information so you can make the best decision possible. Talking with a lawyer is a good idea so that you understand your options and the risks posed by each one.

13. What choices do I have?

You have several options. Here are some:

• If you can talk to the father and are not afraid of him, you can try to work out a plan so that both of you can spend time with the children in the event you separate. Put your agreement in writing, and both of you should sign it.
• If you would like to work out an agreement but feel you need an impartial person to help, there are mediators who can help you. The Family Court has mediators available to do this. You and the father will have to pay for their mediation services; the Family Mediation Center charges fees on a sliding scale, based upon ability to pay, ranging from $50. to $200.
• You can file a paternity action using forms available at the Self-Help Center at Family Court. The Family Mediation Center may be able to help you work out an agreement, or you can ask the judge for a hearing either to help work it out or, if you work out an agreement, to approve it and make it an order of the court. NOTE: If you have been battered by him, or are otherwise afraid of him, you should tell the mediator; you can ask that the domestic violence protocol be used so that you do not have to sit in the same room with him to work out the agreement.
• You can hire an attorney to file a paternity case for you.
• You can do nothing, and wait to see if he files something.

16. What do I have to do if I never married my child’s father but I want to establish court orders for child support, custody or visitation?

If paternity has not been established, you must file a Complaint to Establish Paternity. If you and the father of the children have signed an Affidavit of Paternity and the time has passed for it to be withdrawn, you could file a Complaint for Support/Custody/Visitation, and include a copy of the Affidavit. Forms to do this are available at the Self-Help Center at Family Court or may be downloaded off the Internet from the Self-Help Center at Family Court: www.co.clark.nv.us/district_court/self_help_center/index.htm.

17. If I want to file a Paternity case myself, is there anybody who can help me?

Clark County Legal Services Program, Inc., Nevada Legal Services and the Boyd School of Law together provide free legal information classes on Divorce, Paternity and Custody law. The classes are taught by law students, with a supervising attorney available to answer questions regarding do-it-yourself divorce or custody/paternity/child support cases. For more information, call (702) 386-1070 in order to register or find information on the class schedule for the current semester. Many domestic violence shelters have advocates who understand the basic procedures involved in getting a divorce or paternity/custody/child support case, to get you started. Also, see the Checklists at the Appendices to Sections 9 and 10, including How To Prepare For A Court Hearing on page 116 of this manual.

18. I don’t think I can do it myself, but I can’t afford an attorney. How can I get someone to help me?

Many attorneys in Clark County offer what are called "unbundled services." This means that you may hire the attorney for limited assistance only (such as, to appear with you at a hearing or to review your documents) and he/she agrees to charge you only for that limited service. This can allow you to control the amount you pay in legal fees, while getting you the expert assistance you need to proceed with the case largely on your own. Clark County Legal Services Program, Inc., Nevada Legal Services and the Boyd School of Law together provide free legal information classes on Paternity and Custody. For more information, call (702) 386-1070 in order to register or find information on the class schedule for the current semester.

See the checklist in the Appendix to this Section for more information on how to proceed.

19. Help! I just got served with a Paternity case! What do I do?

Relax. You have time to respond if you just got served. First, You should try to talk with a lawyer, and show him/her the Complaint. Otherwise, Clark County Legal Services Program, Inc., Nevada Legal Services and the Boyd School of Law together provide free legal information classes on Paternity and Custody. For more information, call (702) 386-1070 in order to register or find information on the class schedule for the current semester.

Read the papers you were served. One is a Complaint, and one is a Summons. The Complaint will tell you what the other side is seeking. Usually, it is the father who files against you. Look at the Complaint. See if he wants custody, or if he just wants visitation. At the last page of the Complaint will be a signature. If only his name appears there, it means he does not have a lawyer (yet). You should prepare an Answer to the Complaint (you can get instructions and fill-in-the-blank forms for this from the Self-Help Center at Family Court or download them off the Internet for free www.co.clark.nv.us/district_court/self_help_center/index.htm). Look at the Complaint. Each sentence is numbered. In your Answer, you will say whether you "admit" (agree), "deny" (disagree), or lack information sufficient to admit or deny, each numbered paragraph of the Complaint.

You can file also file motions for temporary relief with your Answer. For example, if you are served with a Complaint from a man who you do not believe is the father of your child, you can file a Motion for Paternity Tests (you can purchase instructions and a fill-in-the-blank Motion for this and other relief from the Self-Help Center at Family Court or download them off the Internet for free www.co.clark.nv.us/district_court/self_help_center/index.htm). You should also file a Counterclaim with your Answer if you want terms for custody, visitation or support other then those set out in the Complaint; the Counterclaim allows you to set out what you would like the judge to order for custody, visitation and child support.

See the Checklist at the end of this Section for more information on how to proceed.

CHECKLIST FOR THE PLAINTIFF IN PATERNITY/CUSTODY CASES

(You are the plaintiff if you have started the lawsuit).

____ Go to the Family Court Self Help Center and pay $3.00 to get the Paternity packet or get the forms free from the internet: www.co.clark.nv.us/district_count/self_help_center/index.htm:

• Complaint;
• Summons;
• Family Court Cover Sheet;
• Application to Proceed In Forma Pauperis, also known as a Request for Waiver of Fees and Costs (if necessary--it will cover the $122.00 filing fee and the cost of serving the Summons and Complaint);
• Uniform Child Custody Jurisdiction Act (UCCJA) form;
• Joint Preliminary Injunction (optional)

___ Fill out the documents, either with a typewriter or with a black pen printing neatly. Do not sign any of the documents (Complaint or Application to Proceed in Forma Pauperis) until you are in front of a notary public. The Court will not accept for filing any documents that are not notarized!

___ Talk with a lawyer if you have questions or concerns--the people who work at Family Court cannot give you legal advice.
Sign the documents at Family Court before a notary public at the Self-Help Center, or any other notary.

___ Make copies of your signed documents:

• one set for you;
• one set for the father;
• one extra set that can be used for summary disposition, if the defendant (father) does not file an Answer to the Complaint.

___ File at Family Court (with the $122. filing fee, unless you file an Application to Proceed In Forma Pauperis)

• the Complaint
• the Summons
• the Family Court Cover Sheet
• the Application to Proceed In Forma Pauperis (if you need financial assistance to file and serve the Summons and Complaint)
• the UCCJA form
• the Joint Preliminary Injunction.

___ If your Application to Proceed in Forma Pauperis is granted, it may be sent directly to the Clark County Sheriff for service (confirm this with the Clerk’s office). Otherwise, you will have to take the Summons and Complaint to the Clark County Sheriff (601 E. Fremont, Las Vegas, NV) for service.

___ If the Sheriff is unable to serve the father, or if you did not get an Order to Proceed In Forma Pauperis, make arrangements for a commercial process server or another US citizen over 18 who is not an "interested person" in your case, to serve the defendant. Then have him/her complete an Affidavit of Service of the Summons and Complaint.

___ File the original Summons with the court, along with the completed Affidavit of Service to prove that the defendant was served.

___ Go to the Family Court Self Help Center and pay $3.00 to get the forms required if you want to file a motion for temporary relief while the case is pending, or get the forms from the internet: www.co.clark.nv.us/district_count/self_help_center/index.htm

___ Fill out any Motions for temporary relief (i.e. Order for Temporary Custody) that you might need to file (if you are filing a Motion for Temporary Child Support you will need to complete an Affidavit of Financial Condition - the Family Court Clerk’s office can provide you with a copy of this form). Do not sign the Motion or any Supporting Affidavits until you are in front of a notary or the notary will not notarize your documents. The Court will not accept for filing any documents that are not notarized! You may be able to have the defendant served with the Motion at the same time as he is served with the Summons and Complaint – just be certain to have the hearing date set appropriately so that the defendant has at least 20 days to Answer the Complaint and to Reply to your Motion.

___ Talk with a lawyer if you have questions or concerns--the people who work at Family Court cannot give you legal advice.

___ File the Motions; serve the defendant. If you did not file and serve the Motion at the same time as the Summons and Complaint and if the defendant has already filed an Answer, you may serve the Motion by mail at the address listed on the Answer; be sure to observe the time requirements so that the other party has sufficient notice in order to prepare for the hearing.

___ Attend the TransParenting Class (within 45 days after the Complaint is served on the defendant).

___ If the defendant files an Answer, prepare to attend and file a Joint Case Conference Report (setting out the items agreed between the parties, the issues that remain in dispute, documents requested from either side, lists of witnesses for both sides and a brief summary of their anticipated testimony), within 30 days after the Defendant file an Answer. If you and the defendant are unable to agree upon a Joint report, you may each file an Individual report.

___ If the defendant has filed a Counterclaim with his Answer, you should file a Reply to the Counterclaim within 20 days after it is served on you. You may have someone (other then you) mail a copy of the Reply to the defendant by mail, and file a Certificate of Mailing with the court.

___ If neither side has filed any Motions, you may file a Request for Pretrial Hearing/Trial. Either side can do this. You can get the form from the Court Clerk’s office.

___ Get ready for and attend the hearing. If motions for temporary relief were filed by either party, the date and time of hearing will be on the Motion. Otherwise, if a party has filed a Request for Pretrial hearing/Trial form, or the court has set the case for hearing because an Early Case Conference Report was filed, the court will notify you (by mail) of your hearing date and time. Note that the first issue the judge will need to deal with is the question of paternity – your abuser must first be determined to be the legal father of your child(ren) before the judge will make any rulings regarding custody, visitation or child support.

___ On the day of your hearing:

• Go to court.
• Check in with the court clerk
• When your case is called, go to the tables that face the judge – since you are the plaintiff in the case (that is, you filed the Complaint), you go to the table on your right.
• Tell the judge what you think is fair and why.
• Speak only to the judge when in the courtroom
• Do not talk to the other side; direct your answers to the judge.
• Do not interrupt the other side when it is his turn to speak.
• Never interrupt the judge.
• Listen to the judge's questions, and try to answer them carefully and directly.

___ If the judge decides that the defendant is not the father of your child, the judge will enter an order to that effect and this will end the case. The judge may decide to order the parties and the child(ren) to undergo a paternity test and schedule another hearing date when the results of the test are known (in which case, follow the checklist items above again.)

• Get a copy of any orders entered by the judge at the hearing. The judge may direct one side to prepare the order. If you must prepare the order, prepare 1 original and 3 copies of the order and place them in the mailbox for that department. The mailboxes are located on the 3rd floor of Family Court. After the judge signs the Order, if you prepared the Order, you must get the signed Order from the Judge’s Clerk, make copies of the signed Order for you and the father, and then file the original copy of the signed order with the Court Clerk (the same place you went to file the Complaint), who will stamp the judge’s signature on the copies of the Order, date-stamp the copies and return the copies to you. You must serve the other side with a copy of the signed Order, by mail, and file an Affidavit of Service confirming that you have done so.

___ Once paternity it determined, and assuming that the defendant is found to be the father of your child(ren), the judge may order you and the father to the Family Mediation Center for mediation. You should contact them (at Family Court), pay the necessary fee and attend the mediation session they schedule. If you are a victim of domestic violence, be sure to tell that to the mediator. If you do not feel safe sitting in the same room as your abuser, ask the mediator for the "domestic violence protocol", so that you can meet with the mediator separately. Do not agree to anything that puts your safety at risk. Do not sign anything unless you understand what it says and are in full agreement with it (you are entitled to get a copy of any proposed agreement to show to your lawyer, before signing). Be prepared to go before the judge if you cannot work out an agreement regarding custody and visitation.

___ If all matters are not resolved in mediation or in the hearing on any motions for temporary relief, the judge will give you a trial date.

___ Attend the trial. At the end of the trial, the judge will determine legal and physical custody for the children, a visitation schedule, if necessary and which party will pay child support and the amount of any such child support.

CHECKLIST FOR THE DEFENDANT IN A PATERNITY/CUSTODY CASES

(The father filed the lawsuit and you were served with a Summons and Complaint)

___ Go to the Family Court Self Help Center and pay $3.00 to get the Paternity packet or get the forms free from the internet: www.co.clark.nv.us/district_count/self_help_center/index.htm:

• Answer (with or without Counterclaim: Note that if you want anything different from the custody/visitation/support terms set out in the Complaint, you must file a Counterclaim. There is no additional fee to do this)
• Application to Proceed In Forma Pauperis, also known as a Request for Waiver of Fees and Costs (if necessary--it will cover the $80.00 filing fee)

___ Also get the motions for temporary relief (i.e. Order for Temporary Custody) that you might need to file from the Self-Help Center at Family Court (if you are filing a Motion for Temporary Child Support you will need to complete an Affidavit of Financial Condition - the Family Court Clerk’s office can provide you with a copy of this form).

___ Fill out the documents, either with a typewriter or with a black pen, printing neatly. Do not sign any of the documents (Answer or Application to Proceed in Forma Pauperis) until you are in front of a notary public.

___ Talk with a lawyer if you have questions or concerns--the people who work at

Family Court cannot give you legal advice.

Sign the documents at Family Court before a notary public at the Self-Help Center, or any other notary. Do not sign the documents until you are in front of a notary or the notary will not accept your documents for notarizing. The Court will not accept for filing any documents that are not notarized!

Make copies of your signed documents:

• one set for you;
• one set for the plaintiff;
• one extra set that can be used for summary disposition, if the plaintiff (father) does not file a reply to your Counterclaim

___ File the Answer (original and 3 copies), with the $80. filing fee (unless you have also filed an Application to Proceed In Forma Pauperis) and any Motions with the Clerk. If you cannot afford the $80. filing fee, complete and file an Application to Proceed In Forma Pauperis. Get the Case Number of the case if it does not appear on the Complaint. You have 20 days from the day you receive the Complaint to file your Answer.

___ Mail a copy of your Answer and any Motions to the other side. Look at your Summons for the address you may use for service; be sure to observe the time requirements set out in the Self-Help Center instruction packet so that the other party has sufficient time to prepare for the hearing. If the other side has a lawyer, you must mail your Answer and/or Motions to the lawyer.

___ Prepare and sign a Certificate of Mailing (showing that you mailed the Answer and any Motions to the father) and file it with the Court (this document will be in the packet you purchased from the Self-Help Center for $3.00)

___ Fill out the Affidavit of Financial Condition (you can get this from the Clerk’s office); if the other side does not send you a demand for it, you will still need to bring it to court on the day of any hearing for temporary child support.

___ Get ready for court. If motions for temporary relief were filed by either party, the date and time of hearing will be on the Motion. Otherwise, if a party has filed a Request for Pretrial hearing/Trial form, or the court has set the case for hearing because an Early Case Conference Report was filed, the court will notify you (by mail) of your hearing date and time.

___ On the day of your hearing:

• Go to court.
• Check in with the court Clerk
• When your case is called, go to the tables that face the judge – since you are the defendant, you go to the table on your left.
• Tell the judge what you think is fair and why.
• Speak only to the judge when in the courtroom
• Do not talk to the other side; direct your answers to the judge.
• Do not interrupt the other side when it is plaintiff’s turn to speak.
• Never interrupt the judge.
• Listen to the judge's questions, and try to answer them carefully and directly.
• Get a copy of any orders entered by the judge at the hearing. The judge may direct one side to prepare the order. If you must prepare the order, prepare 1 original and 3 copies of the order and submit it to the judge by placing the copies in the mailbox for that department. The mailboxes are located on the 3rd floor of Family Court. After the judge signs the Order, if you prepared the Order, you must get the signed Order from the Judge’s Clerk, make copies of the signed Order for you and the father, and then file the original copy of the signed order with the Court Clerk (the same place you went to file the Complaint), who will stamp the judge’s signature on the copies of the Order, date-stamp the copies and return the copies to you. You must serve the other side with a copy of the signed Order, by mail.

Thereafter, you will follow or respond to the procedures listed in the Plaintiff’s Checklist, starting on page 85.

Family law is complex and changes over time; the information below is accurate, as of the publication date. This manual is intended to provide general information only; it is not a substitute for legal advice from an attorney that is specific to your case.

Proceed to Section 10, Part 1: Divorce >