Carbone v. Superior Court

In Carbone v. Superior Court (1941) 18 Cal.2d 768, the purported father objected that he could not be ordered to support the child until he was proved to be her father. The court rejected that claim, stating that "the plaintiff, upon the hearing of the order to show cause, must prove by a preponderance of the evidence that the defendant is her father before he can be ordered to pay her support, costs of suit, or counsel fees pending the trial of the issues of the case. The defendant must be given an opportunity to be heard and to present his evidence. Then, even though the court upon a preponderance of the evidence presented at the hearing issues the order, its implied finding of paternity is not res judicata nor determinative of the issue of parentage at the trial. The proceeding is merely a hearing upon an order to show cause for the purpose of determining plaintiff's right to an award pendente lite, and while defendant may put the jurisdictional prerequisite of parentage in issue, the evidence produced by the parties need not be so extensive as at the trial of the action. The resulting judgment is temporary in effect; except as to payments already accrued thereunder, its operation terminates upon the final determination of the action or upon order of the court." ( Carbone v. Superior Court, supra, 18 Cal.2d at p. 772.)