When unmarried parents separate in San Mateo, California, they face some unique challenges beyond what a married couple will have to deal with. With a married couple, the father is automatically presumed to be the biological parent of children in that home. Unfortunately, unwed fathers are not automatically considered the biological parents of children, and this raises issues concerning child support and custody and visitation that it’s important to have a skilled lawyer to help you with.
What Legal Rights Do Unmarried Parents Have in California?
Ultimately, unmarried parents have the same legal rights as married parents in California. This means that unmarried fathers have the same rights to visitation and custody of their children as married fathers. It also means that mothers have the same right to child support as if the child’s father had been their husband. The difficulty is proving paternity. This must be established in order for the father to have custodial rights and a mother to get the child support she may need.
Notice that we have not discussed here the issue of a mother’s rights to visitation and custody or a father’s rights to child support. Why not, when California law assumes that both parents are equally able to care for their children and does not favor mothers over fathers for custody and visitation? The law also assumes that both parents are capable of earning money and caring for their children and does not automatically make fathers pay mothers child support. In fact, mothers may be required to pay child support to fathers at times.
The issue is that, when it comes to an unmarried couple, parental rights are most often muddied by the need to prove paternity where, in most cases, maternity is clear. Because a woman gives birth to a child, it’s much easier to prove a child is hers. Her name is on the birth certificate with no questions asked, so she can enjoy her visitation rights or the court can order her to pay child support. It’s typically with fathers that there’s an issue.
Establishing Paternity
The term “paternity” from the Latin word for father, pater. These days, the term is primarily used in legal settings. One option for establishing paternity is for the two parents to agree and sign a declaration of paternity at the time the child is born. Since 1997, it has been a requirement in California for parents to sign this sort of declaration to get a birth certificate with a father’s name on it. The law does not allow a father’s name to be added to the certificate unless the two parents agree and sign this declaration.
However, in some cases, the court will need to establish beyond this declaration that a man is genuinely the biological parent of a child. In other cases, there may be no father listed on the birth certificate, and it is now important for the father to prove his relationship to the children.
Signing a Declaration Later
One option is for the two parents to sign a declaration later, after the birth of the child. If this was not done at the hospital, then the two parents will need to visit a welfare office or do this at the Superior Court in the city where they reside. They will sign the declaration and the form will then be filed with the California Department of Child Support Services.
At that point, it becomes legally enforceable for all situations, including divorce and child custody. When this declaration is signed, both parties are also agreeing to waive certain rights they would otherwise have, such as hiring a lawyer or going to court to determine parentage later. If you have signed this document as a father, you cannot later request DNA testing.
DNA Testing
If no declaration has been signed, either party may be able to request a DNA test in certain situations of child custody. Additionally, the court can require a DNA test under certain circumstances on its own.
Unmarried Mothers and Child Support
It’s a fairly common situation for an unmarried mother to find the unmarried father refusing to pay any child support or take responsibility for the child he has fathered. In some cases, an unmarried father may voluntarily offer support to the mother of his child for a while, but then one day the support just stops. There is no way to force a man to pay child support without an order from the court, and while the mother can get financial help from the state of California, the first step the state will take will be to seek out the child’s father to file a lawsuit against him for reimbursement.
Even if the mother does not need to seek welfare assistance, she can still go to court to get orders requiring the child’s father to pay support. If that happens, the court must determine paternity before it can make any orders. It’s always best for an unmarried mother in this situation to talk with a family law attorney in San Mateo, California and get a formal court order for child support. Once the court makes this order, it’s something that can be then be enforced, and a father can’t wriggle out from under his obligations.
Unmarried Fathers and Parental Rights
The other side of this coin is fathers who not only want to pay child support but also want to continue to be intimately involved in the lives of their own children. However, if they do not have their name on a birth certificate and have not signed a joint declaration of parentage, they don’t have any rights until they establish them. And while the courts will pursue an unmarried father to force him to pay child support and will prosecute him if he does not, the courts in California do nothing to fight for the rights of fathers to be part of their children’s lives.
Unfortunately, it’s all on you as a father to establish your rights and to enforce them. You need to seek a court order to be recognized as your children’s father and to protect your rights to custody, visitation, and decision-making in their lives. Another reason that an unmarried father will want to establish his parental rights formally with the court is because it will affect child support obligations. When the court is determining child support numbers, it looks not only at the income of the two parents, but also at the amount of time that each of the parents spends with a child.
In other words, if the child is mostly 50/50 between the parents’ homes, and the two parents make about the same amount of money, there would ordinarily be little to no child support ordered because the parents are taking equal responsibility. However, if the father was never married to the mother and has not established his paternity, no time that he spends with the children counts in these calculations. The only way to get visitation to count is to get a court order proving your paternity.
Unwed parents can face some special challenges, so whether you’re a mother or a father, don’t lose out on your rights as a parent. Contact Seeley Family Law in San Mateo, CA today.