With or without a marriage certificate, family is family. Blood relatives
are blood relatives. When an unmarried couple has children together and they
break up, they face unique challenges in regards to
child custody and
child support. Fathers in particular, have more hoops to jump through when they never
married their children’s mother.
Like most states, in California, when a child is born to married parents,
the state automatically assumes that the woman’s husband is the
child’s father, even if he’s not (that’s for another
blog). Unwed fathers on the other hand, are NOT automatically assumed
to be a child’s biological father. Until paternity is established,
the family courts cannot help a mother recover child support, and a father
has NO legal standing in regards to child custody and
Establishing Paternity in California
The term “paternity” means to establish who the legal father of a child is. This is
the legal recognition of a child’s biological father. Generally,
when a child is born out of wedlock, paternity is established through
Acknowledgement of Paternity, or through a DNA (paternity) test. If a man believes a child is his,
he typically signs the
Acknowledgement of Paternity form at the hospital shortly after the child’s birth.
If there is question about a child’s paternity, a presumed father
is advised not to sign an
Acknowledgement of Paternity. Instead, he should ask the court for a DNA test. If the DNA test positively
affirms that a man is a child’s biological father, then he automatically
has all of the same rights and responsibilities toward his child as a
Once paternity is established through the voluntary signing of an
Acknowledgement of Paternity or through a DNA test, the legal and biological father can ask the court
for custody and visitation of his child, and the mother can ask the court
for child support, a contribution to childcare expenses, and medical support.
Unmarried Mothers & Child Support
Relationships can be complicated, very complicated. A child can be created
after two people spend one night together. A married woman can become
pregnant by another man while her husband is away on business or in prison.
Two married co-workers can fall in love, accidentally get pregnant and
decide to stay with their respective spouses. Or, a couple can be together
for years, have a baby and never marry because they have objections about
marriage. Then, when they breakup, the father can slip out of the picture.
Since unions and breakups can be diverse and complicated, it’s not
unusual for the woman to end up with the child while the father goes his
separate way. Often what happens is the mother ends up receiving no financial
help from the father. Sometimes, this was the mother’s intention
all along, but she falls on hard times and changes her mind or decides
she wants child support for another reason.
According to the California Family Code Section 7610, mothers are automatically
granted custody after the child is born. A mother does not need to take
legal action to fight for custody of her child at this point, unless there
is a court order that states otherwise. Mothers may also choose how much
time the father gets to spend with the child.
Sometimes, the father voluntarily gives the mother cash when the baby is
first born, but he ceases giving her money after several months. Even
if a father was previously making good faith child support payments directly
to the mother for years, there’s no way for her to force him to
pay child support until paternity is established. The courts have no power
to collect child support until paternity is established by the court.
It’s not uncommon for mothers to ask the government for financial
assistance. When a single mother appeals to the state for help, the first
thing the state is going to want to know is, “Where is the child’s
father?” The state will want to pursue the father for welfare reimbursement
and it will do this by filing a lawsuit against him. However, the state
can’t be reimbursed until it first establishes paternity. Even in
a non-welfare case, the court cannot make orders for child support until
paternity is established.
An Unmarried Man’s Parental Rights
As we mentioned earlier, unmarried fathers do not have any rights toward
their children unless paternity has been legally established by the court.
This can make a lot of fathers feel cheated by the legal system. They
can feel like they play second fiddle to the mother. Not only that, but
the mother can fail to tell the father about the pregnancy or keep the
child all to herself, but the state still expects the child’s father
to pay child support.
If a father wants to
fight to be in his child’s life, he has no choice but to go to court. Without establishing paternity and
getting a court order for child custody or visitation, a father has no
say in his child’s upbringing. The mother can live where she wants
with the child, and she does not have to consult the father about any
of the child-raising decisions. The only recourse that unmarried fathers
have is DNA tests and court orders for child custody and visitation that
recognize their parental rights.
If an unmarried father asks the court for parenting time and it is awarded,
it can reduce a father’s child support obligation. This is because
child support is calculated based on both parents’ gross income
and the percentage of time the child spends with each parent. If you have
questions about this, an attorney from our firm can explain how child
support can be affected by the number of overnights a father has with
his children throughout the year.
You may never have married your child’s other parent, but that doesn’t
mean you can’t exercise your rights toward your children. Fortunately,
California has procedures in place to enforce the parental rights of unmarried parents.
FAQs About Child Support in California