City and County of San Francisco v. Superior Court

Opinion

WHITE, P. J.

This writ petition raises the issue whether the City and County of San Francisco, as assignee of its AFDC (aid to families with dependent children) welfare recipients, can compel payment by the putative fathers of child support pending final determination of paternity. The question turns upon the applicability of Civil Code, section 196a, which provides that child support in paternity actions will be governed by the same provisions as apply in dissolution actions.

The city and county is the primary plaintiff in three separate paternity actions against real parties. Under the authority of section 196a it moved for orders for child support, attorneys’ fees, and costs pendente lite in all three actions. In each case the motion was denied without any evidentiary hearing for a preliminary determination of paternity. The city and county contends that it has been denied its statutory right to prove paternity by a preponderance of evidence and to obtain temporary child support payments from real parties.

Civil Code, section 196a provides: “The father as well as the mother of a child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor child, and in such action the court shall have power to order and enforce performance thereof, the same as in a suit for dissolution of marriage.”

Civil Code, section 4357 specifically provides that “[djuring the pendency of any” dissolution, child custody, or child support proceeding “the superior court may order the husband or wife, or father or mother, as the case may be, to pay any amount that is necessary for the support and maintenance of the wife or husband and for the support, maintenance and education of the children, as the case may be. An order made pursuant to this section shall not prejudice the rights of the parties or children with respect to any subsequent order which may be made. Any such order may be modified or revoked at any time except as to any

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amount that may have accrued prior to the date of filing of the notice of motion or order to show cause to modify or revoke.” Civil Code, section 4370 provides for attorney fees and costs pendente lite in connection with any dissolution proceedings.