How to Establish Child Custody If You Were Never Married to the Other Parent
Aug. 26, 2020
In 2018, nearly 455,000 babies were born in California and more than 168,000 to unmarried mothers. Although those mothers automatically gain custody of their child at birth under California law, fathers do not. On the one hand, that means the biological father isn’t accountable for paying child support to the mother. On the other hand, fathers also have no legal right to custody or visitation of their children, even if their name appears on the birth certificate. For both parents, the legal system is the best way to ensure custody, visitation, and financial support for the child.
Attorney Karen S. Brown has helped hundreds of clients in Los Angeles County, California and surrounding areas face family law challenges like those created when children are born to parents who are not married. She offers clients information, advice, and guidance shaped by her legal experience and expertise.
THE UNWED MOTHER & CHILD
An unwed mother has sole custody of her child from birth, which means she is responsible for raising the child without the father. Even if the father lives with the mother or agrees to help financially, he’s not legally bound to participate in any way because he has no automatic custody rights under the law. This is tough for fathers who want to spend time with their children and for mothers who need financial help to raise them.
In 1973, all 50 states adopted the Uniform Parentage Act which provides the framework courts use to identify a child’s legal parents. The Act has been revised over the years, providing for situations such as using surrogates, donor-assisted fertilization, and same-sex marriages.
One of the ways that paternity is established is through voluntary declaration. This occurs when both parents sign a Voluntary Declaration of Parentage form and submit it to the California Department of Child Support Services. Once the Voluntary Declaration is signed, it’s difficult to withdraw, even if genetic testing later shows the signer was not the biological father. By signing, both parents share equal custody and equal responsibility for financial support of the child.
If either parent refuses to sign the form, the parent wishing to establish paternity will have to petition the court. The Petition to Establish Parental Relationship must be filed in the court with jurisdiction over the residence of the child. The court will then order a DNA test to be conducted to officially determine paternity.
WHY PATERNITY IS IMPORTANT
Establishing paternity gives the father legal standing to formalize custody and visitation, and the mother to hold him accountable for child support. But it also provides legal standing for the father to participate in matters such as choosing the child’s last name, claiming the child as a dependent on income taxes, and choosing where the child goes to school. Legal paternity opens the door for the child to benefit from a father’s health insurance coverage, Social Security benefits, and his estate.
The father, as well as the mother, are required to demonstrate their commitment to parenting time. A father who establishes paternity and wants to parent the child could prevent the birth mother from putting the child up for adoption and even petition the court for full custody.
Also, once a father establishes paternity, the mother cannot move with the child to another state if the father objects, unless she is granted permission by the court. If the father fails to establish paternity in California before the mother moves, he will have to do so in the state in which the child resides.
Establishing paternity alone would not prohibit a step-parent from being allowed to adopt the child.
HOW LEGAL COUNSEL CAN HELP
Some unmarried fathers feel cheated by not having automatic child custody. Some unmarried mothers want to be able to hold the biological father accountable for child support. Many parents are just seeking the right to spend time with their children. Establishing custody can be complicated and emotional, which makes having a compassionate, experienced attorney on your side a wise choice. Your attorney can guide you through the process that, in the end, will make a difference in your child’s life.
Karen S. Brown is a Certified Legal Specialist in Family Law fiercely dedicated to serving clients in Los Angeles County, California, and surrounding communities. She will represent you compassionately and fight diligently to protect your rights and the well-being of your family. Call the Law Office of Karen S. Brown today for a free case assessment.