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What Are My Rights if I Never Married My Child's Mother?

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Are you an unmarried father who is now curious about your parental rights, responsibilities, and legal obligations toward your child? If so, you’re not alone.

According to the Pew Research Center, “One-in-four parents living with a child in the United States today are unmarried. Driven by declines in marriage overall, as well as increases in births outside of marriage, this marks a dramatic change from a half-century ago, when fewer than one-in-ten parents living with their children were unmarried (7%).”

Pew Research Center goes on to explain that due primarily to the growing number of cohabitating parents, the share of unmarried fathers have more than doubled in the past 50 years. In 1968, only 12% of unmarried fathers resided with their children, and today, that number has risen dramatically to 29%.

“The growth in unmarried parenthood overall has been driven by several demographic trends. Perhaps most important has been the decline in the share of people overall who are married. In 1970, about seven-in-ten U.S. adults ages 18 and older were married; in 2016, that share stood at 50%. Both delays in marriage and long-term increases in divorce have fueled this trend,” according to Pew.

In light of Pew’s data and the rising number of children being born outside of marriage, it’s no wonder that questions are being raised about the rights of unmarried fathers.

Unmarried Mothers Have Automatic Rights

When a child is born to unmarried parents, the mother automatically has sole physical and legal custody of her child. Until paternity is legally established, the father has zero rights and responsibilities toward his child, even if biologically, the child is his. This means the mother has the sole right to decide:

  • Who sees her child and when
  • If the father can see his child
  • Who will care for the child
  • On the child’s medical care
  • If she wants to apply for public benefits on the child’s behalf

Until paternity is officially established, the family court’s hands are tied. It cannot issue orders for child support or child custody, but once paternity is confirmed, the court is free to do so.

Even though the mother has sole physical and legal custody before paternity is established, that doesn’t mean she isn’t encouraged to let the father see his child and it doesn’t mean the father shouldn’t try to help the mother out financially because these gestures will help each party’s family law case in the future.

What it Means to Establish Paternity

The California Courts state that establishing paternity means to sign an official declaration of paternity or to obtain a court order that says who a child’s legal parents are. “...if the parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until parentage is established. So even if a father can prove he is the biological father of a child, if he was never married to the mother, he does not legally have any rights or responsibilities for the child. For that, parentage must be established legally,” according to the California Courts.

As we mentioned earlier, establishing paternity is required before the court can order child support, child custody, or visitation. A mother can ask the judge for child support or a presumed father can ask for custody or visitation orders as part of their paternity case. If the man is not 100% sure he is the father or if he has any doubt and he refuses to admit that he is the father, the court can order the alleged father and child to submit to a DNA test.

Once it is established that a man is a biological and legal father of a child, he will have the same rights and responsibilities of a father who was married to the mother at the time of the child’s birth:

  • He will be able to request child custody and visitation, also known as “parenting time” so he can legally see his child.
  • He will be responsible for paying child support until his child turns 18, or 19 if his child is still enrolled in high school full-time.
  • He will have to pay half of his child’s healthcare costs.
  • He will have to pay half of the childcare costs if the mother has to get a job or go to school so she can get a good job.

Establishing Paternity Benefits the Child

Establishing paternity is very important to children who are born out of wedlock. First, children benefit emotionally by knowing who their father is. Legally, paternity establishment gives children the same rights and privileges as children who are born to married parents.

Some of these legal rights and privileges include financial support from both parents, legal documentation that identifies both parents, having the father’s name on the child’s birth certificate, access to the father’s medical records and history, the right to inherit from the mother and father, and the right to receive Social Security and veteran’s benefits, if applicable.

Disputing Paternity in California

If a man is being told by a woman that he is the father of her child, he has the right to request a DNA test if he isn’t completely sure he is the child’s father. DNA tests are simple, painless, and highly accurate. Since the saliva contains DNA, samples of the DNA are collected by gently rubbing a cotton swab resembling a Q-tip inside the mouth.

If you need legal assistance with a paternity case, reach out to Claery & Hammond, LLP to request your free consultation.

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