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 visitation.
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 a voluntary 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 married or divorced father.
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.
