Voluntary vs. court-ordered DNA tests

The first thing to understand is the difference between a voluntary request and a court order. They have completely different consequences when refused.

A voluntary request happens between private parties. One person asks another to take a DNA test. The other person can say no for any reason or no reason at all, with no legal consequence. There is no requirement under California law for a private citizen to provide a DNA sample on demand.

A court-ordered DNA test is a different matter. Once a California court has ordered DNA testing as part of a family law proceeding, refusing has consequences that can be more serious than the test itself.

Refusing a voluntary request

If a woman asks an alleged father to take a paternity test voluntarily, and he refuses, here is what she can do:

  1. File a petition to establish parental relationship with the family court (Form FL-200)
  2. Request the court to order DNA testing as part of the proceeding
  3. If the court grants the order, the alleged father is now under a court order, not a voluntary request

Voluntary refusal often becomes court-ordered testing within a few months. The refusal does not avoid the test. It just changes who is paying attention.

California law on court-ordered DNA testing

California Family Code sections 7551 through 7558 govern court-ordered paternity testing. The key provisions:

  • Section 7551: The court may, on motion of any party or on its own motion, order genetic testing of the mother, child, and alleged father in any case where paternity is at issue.
  • Section 7552: Testing must be performed by an AABB-accredited laboratory or another lab approved by the court.
  • Section 7555: If genetic testing results show a 99 percent or greater probability of paternity, paternity is presumed. The presumption can only be rebutted by clear and convincing evidence.
  • Section 7558: The court can sanction parties who refuse to comply with testing orders.

Consequences of refusing a court-ordered DNA test

California courts have several tools when a party refuses an order to submit to genetic testing:

  1. Adverse inference. The court may infer that the refusal indicates the person knew the result would establish paternity. In practical terms, this often means paternity is established by the refusal itself.
  2. Default judgment. The court may enter a default judgment of paternity against the refusing party, which establishes legal parenthood the same as if testing had confirmed it.
  3. Contempt of court. Refusing a direct court order can result in fines and, in extreme cases, jail time, though jail for refusing paternity testing is rare.
  4. Cost shifting. The court can order the refusing party to pay all costs of the proceeding, including the other party's attorney fees.
  5. Child support order. Once paternity is established (whether by test or by default), the alleged father becomes responsible for child support back to the date of filing.

Can the police physically force a DNA sample?

No. California has no provision to physically restrain an adult to collect a DNA sample for a civil family law matter. The court works through consequences (default judgment, contempt) rather than physical force. The only times physical DNA collection without consent is permitted involve criminal cases with specific court orders, which is a separate area of law.

In practical terms, this means a man can refuse to physically allow a swab. He cannot, however, avoid the legal consequences of that refusal in a family court proceeding.

If you want to legally request a paternity test

If you believe you are the father, or you believe someone else is the father of your child, and the other party refuses voluntary testing, the path is:

  1. File Form FL-200 (Petition to Establish Parental Relationship) with the Superior Court in the county where the child lives
  2. Serve the other party
  3. Request court-ordered DNA testing in the petition or in a separate motion
  4. Attend the court hearing where the order is made
  5. Once ordered, schedule the testing with an AABB-accredited collection service (we handle this for many of these cases across Riverside, San Bernardino, Orange, and Los Angeles counties)

Most family law attorneys handle these cases on flat fees or hourly rates. The Department of Child Support Services (DCSS) will also pursue paternity establishment for free if child support is involved.

If you are the one being asked to test

If you are an alleged father and you are unsure whether to submit to testing voluntarily, a few things worth considering:

  • The test will likely happen one way or another. Voluntary testing keeps you in control of the schedule and process.
  • A voluntary peace-of-mind test ($299) gives you the answer for yourself without legal consequences attached, though it cannot be used in court.
  • If you take the test and it shows you are not the father, that ends the dispute. If you take the test and it shows you are the father, you would have ended up there anyway through court-ordered testing.
  • Refusing buys time but rarely changes the eventual outcome.

If you are being falsely named as a father

Sometimes a man is named on a birth certificate or in a child support filing without being the biological father. A DNA test is the cleanest way to resolve this. Refusing testing in this situation almost always works against you, because the court may presume paternity from the refusal. A legal DNA test that excludes you is fast (3 to 5 business days), conclusive, and ends the case.

You can refuse a voluntary DNA test in California without consequence. You cannot effectively refuse a court order without facing real legal consequences, including possible default establishment of paternity. The refusal does not usually solve the underlying problem; it just changes how the answer arrives.