When it comes to child support in California, people often think that the marriage – or lack thereof – between two parents is the most important factor.
While it’s certainly true that marriage plays a big role in child support – especially if divorce is the reason child support is needed – it’s not the only factor. The other important factor is parentage.
Marriage, Parentage & Child Support
Before a court will consider a petition for child support, the parentage of a child must be established. This is the process of legally determining who a child’s parents are. Usually, identifying a child’s mother is straightforward – she is the individual who gave birth to the child. Identifying the father, though, can be a little more complicated.
Determining Parentage for Married Couples
Before we discuss some of the complexities of establishing parentage when a child’s parents are unmarried, we’ll explain how it works when they are married. California law presumes that when a child is born into a marriage, both spouses are the child’s legal parents – even if the father is not biologically related to the child.
Believe it or not, whoever signs the birth certificate in this situation doesn’t matter as much as you might think. Even if a child was conceived as the result of an affair and the mother’s boyfriend shows up to sign the birth certificate, her husband would still be legally considered the child’s father. The boyfriend could petition for a paternity test within two years, but he could only gain visitation and would be required to pay child support.
This is because once the courts have presumed the husband to be the child’s legal father, there’s little that can change that – even a paternity test. In California, marriage to a child’s mother prevails over the existence of a biological link to a child.
Determining Parentage for Unmarried Persons
If a child is born outside of marriage, they legally don’t have a father yet. This can be remedied if a man is willing to sign a Voluntary Declaration of Paternity, but this presumes that he is willing to assume his rights and responsibilities as a child’s father, which include child support obligations.
Signing a Declaration of Paternity waives the following rights:
- DNA testing
- Notice of any parentage hearing
- Opportunity to present your case during trial
- An attorney’s representation throughout this process
When either the unmarried mother or unmarried father wishes to dispute the paternity of a child, parentage can only be decided by a court order. If a DNA test reveals that a man is biologically linked to the child in question, he will likely be ordered to pay child support.
That said, there are circumstances where an unmarried man can be ordered to pay child support even if he’s not biologically related to a child. For example, the law can presume an unmarried man to be a father (or an “equitable parent” in this case) when he lives with an unmarried mother and demonstrates a commitment to the child by providing food, shelter, clothing, etc.
Although we addressed this issue earlier, it’s important to stress that a birth certificate does not establish parentage for unmarried couples. Only signing a Voluntary Declaration of Parentage or getting a court order can do this.
In summary, it’s true that unmarried parents in California have to pay child support, but only after the child’s parentage is established. Parentage is automatically presumed to include both spouses in a marriage, but unmarried parents must jump through a few legal hoops to establish parentage.
If you are concerned about receiving child support or having to pay it, we at Claery & Hammond, LLP can help you through the legal hurdles before you.
For more information, contact us online today!