California law allows intended parents to establish parentage after a child is born. Here’s how to get a post-birth order in California.
California is considered a surrogacy-friendly state, meaning both pre-and post-birth orders are allowed regardless of the sexual orientation and marital status of intended parents. However, pre-birth orders do not become effective until after birth (California Family Code Section 7633). To get a post-birth order in California, gather all the necessary documents. Then, the petition to the court declared the intended parents of the child.
What is a post-birth order?
A post-birth order is a parentage order, similar to a pre-birth order (PBO) obtained after a baby’s birth rather than prior. Both are signed by a judge and decree on the birth certificate that the intended parents of the baby are recognized as the only legal parents.
Legal parentage of a child relieves surrogates and their spouses, if any, of parental rights and responsibilities after birth.
When to get a post-birth order in California
Both the pre-and post-birth orders establish a relationship between the parent and the child in compliance with the surrogacy agreement. If parents other than the surrogate, their spouse or partner, are not identified as parents in the post-birth order, they have no parental rights or duties.
Under California law, whoever gives birth to the child is presumed the child’s parent. Also known as “marital presumption,” anyone not directly involved in the birthing of the child is not responsible for the child.
Intended parents may not need a post-birth order if they:
- Signed a voluntary declaration of parentage
- Are married
- Work with a local child support agency who already filed a case in court
- Are involved in a domestic violence restraining order case
Why might a post-birth order be necessary?
If an intended parent’s partner is not the child’s biological parent AND is not married to the intended parent, the intended parent’s partner is not legally required to care for the child. Additionally, not all states allow pre-birth orders.
A court will not order custody, visitation, or child support without establishing parentage. Under California law, a child may have more than two parents if doing so is in the child’s best interests. A legal parent of a child is obligated to financially support that child.
Establishing parentage allows a child who may not have legally married parents to receive the same rights and privileges as other children who do, such as:
- Financial and emotional support
- Legal documentation (including birth certificate) with the names of both parents
- Access to family medical records, history, and health/life insurance
- Inheritance from either parent
- Ability to receive social security and/or veteran benefits (if applicable)
How to get a post-birth order in California
In California, the process of filing a post-birth order is similar to a pre-birth order, where the order may be filed in the county where:
- the child will be born
- the intended parent(s) live
- the surrogate lives
- the assisted reproduction agreement for gestational carriers occurs and the performance of the medical procedures
Hearings are not required to obtain a parentage order, with the exception of unmarried intended parents planning to use a surrogate who delivers the child in a state with restrictive surrogacy laws. To establish their rights, intended parents of a child delivered in a state with pre-birth orders can adopt in California. Speak with a family law facilitator, an attorney, or other parenthood organizations to determine the best method of receiving a post-birth order.
1. Gather documents
The petitioner or intended parents of a post-birth order should fill out:
- Petition for parental relationship (Form FL-200)
- Summons (for custody and support) (Form FL-210)
- Declaration Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Form FL-105/GC-120)
Fill out additional documents relating to visitation and custody depending on personal necessity.
2. File a petition the court
A family law facilitator may review the forms before submission. After filing the necessary forms, the court will grant the pre-or post-birth order. Keep a second copy.
Intended parents may use these forms (not required) to show their intent to get a post-birth order:
- Two people are using assisted reproduction to conceive (California Statutory Forms for Assisted Reproduction, Form 1)
- Unmarried, using intended parents sperm to conceive (Form 2)
- Intended parents conceiving with eggs from one person and other person giving birth (Form 3)
3. If necessary, appear before a judge for a trial
Most often, post-birth orders are granted without trial.
4. Service of process
The intended parents going through the post-birth order process should notify all parties involved, including but not limited to:
- The surrogate
- An unmarried partner
The process server, or a third impartial person, should serve the other parent (in person) with all copies of the filed court documents and respond within 30 days. Documents include:
- Response to Petition to Establish Parental Relationship (Form FL-220)
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Form FL-105/GC-120)
- Income and Expense Declaration (child support) (Form FL-150)
The process server should fill out a Proof of Service of Summons (Form Fl-115)
FAQs About Obtaining a Post-Birth Order in California
1. What is the difference between a pre-and post-birth order?
A pre-birth order occurs prior to the birth of the child, and a post-birth order occurs after the birth of a child.
2. How long does it take to receive the post-birth order in California?
Orders filed after the baby (post-birth orders) are filed within three to five days of the baby’s birth.
3. Are there alternative ways to declare legal parentage in California?
Under California law, both parents can sign a voluntary form establishing both of them as legal parents beyond a pre-or post-birth order. The form should be filed with the California Department of Child Support Services Parentage Opportunity Program and notarized. After being filed, the voluntary declaration works the same as a pre-or post-birth order.
To receive the voluntary form (DCSS 0918), the intended parents may
- Email askpop@dcss.ca.gov
OR
Pick it up at:
- A local child support agency
- Registrar of births
- Family law facilitator at the local superior court
- Welfare offices
4. Is a voluntary declaration the same as a pre-or post-birth order?
No. However, a properly filed voluntary declaration in California acts the same as a post-birth order.
5. How long does the service process take in California?
The respondent has 30 days from the day served to file their response.
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