Single parenthood is on the rise today, not just in the country but in the entire world. Statistics show that one out of four parents in the country today is unmarried. This could have been contributed by the increasing decline in marriages as well as the increase of childbirth outside of marriage. While most of these unmarried parents are mothers, there is the issue of cohabiting parents too, which has greatly increased the number of unmarried fathers. Each of these parents has rights which should be protected in case of separation and when planning for child custody.
Child custody issues for unmarried parents start at separation. This is because things are not always as swift as they could be if the parents were married. There are clear cut laws pertaining to child custody and visitation rights when it comes to married parents that are not always an easy thing when the parents are unmarried. For the many years in handling divorce issues for families in San Diego, California, San Diego Divorce Attorney is well-versed with child custody issues and can help you to navigate the process even if you are unmarried.
Establishing Paternity in California
California family laws require anyone who is a parent to establish their parentage or paternity when they separate with their partners. This makes it easy for a judge who is hearing their case to determine who should be given custody or visitation. Note that the legal process in determining the custodial parent will always be marred by challenges, unlike in a situation where parents are married.
Unmarried fathers do not always enjoy the rights enjoyed by biological parents in the state, mainly because there is usually no legal proof that they are indeed the fathers. By establishing their paternity, the father can now be recognized as an equal parent of the child. This process can easily be done by the father’s voluntary declaration, stating that he is the father of the child, followed by his signature.
Signing the Voluntary Declaration of Parentage
The declaration of parentage is done and signed by both parents as a way to prove that they are the lawful parents of a particular child. The declaration can be done and signed after the child’s birth at the hospital where the child was born. Once the declaration is signed at the hospital, the child’s birth certificate will bear both its parent’s names and the parents will not have to move to court to verify that they are both the paternal parents of the child thereafter.
If not signed at the hospital at the time the child is born, the declaration can be signed later on. When this happens and the birth certificate has already been issued out, another birth certificate could be given with both parents’ names in it.
The declaration form can be obtained from a local child support organization, the office of the registrar of births, welfare offices, or from the office of a family law attorney.
If the declaration is done later, the declaration form should be taken to one of the public agencies for signing or it can be countersigned by a public solicitor. Most of the public organizations will have these declaration forms, with complete information about how the declaration works.
After the signing, the declaration form should be sent to the Paternity Opportunity Program, a support service by the Department of Child Support Services in California. Doing this is the only way the form will be effective. A signed form will work the same way as a court order by a judge to establish the parentage for a particular child only that with the declaration, no one needs to go to court.
If the signing was ordered by the court, the signed form has to be sent to the court too. This way, the judge will be able to make decisions pertaining to custody, child support, and visitation.
Note that once the parentage of a child is established, it will be impossible to undo it, even if blood or DNA tests, later on, show that the declared parent is not the child's biological father.
Once parentage has been established, both parents will have an equal responsibility towards the child in terms of paying child support and the right to the child’s custody.
If after that a parent who has already signed the declaration fails to meet his/her support obligation to the child, the custodial parent or the child's guardian can seek the help of the court to enforce support orders on that parent. If this happened, the parent who has violated his support obligation will be fined an amount not more than $1000 plus get locked for a few days (a maximum of five) in county jail.
Legal Implication of Parentage
The father is the one who needs to establish paternity in most cases, so as to be identified as the father of the child. Having the name of the father indicated on the child’s birth certificate does not mean that the father’s paternity is already established. The law has reasons to believe that a mother is capable of enlisting whoever she wants or believes to be the father of the child in the child’s birth certificate. In fact, even a DNA test is not sufficient enough to establish parentage.
Whether done voluntarily or involuntarily, establishing parentage has great legal significance.
For the mother, established paternity could mean secure support from the father, whether financial or emotional. Once it is done, the mother may have to share custody with the father or she may have to allow the child to be visited regularly by its father. This means that she is not the only one the child is depending on for all its needs.
For the father, established paternity will mean that he will now be held accountable for his part of responsibility and support on the child. If for instance, the father is unwilling to voluntarily support the child, he can be forced to do so if the mother decides to sue him in a family court. On the other hand, the father will have equal say on what happens to the child. If for instance, the mother wishes to give away the child for adoption, she may not be able to do so without the consent of the father. Such a father will have equal custody rights to the child and could also enjoy visitation rights in case custody is granted to the mother.
For a child, established paternity automatically means guaranteed emotional, physical and financial support from his/her father. The father is always believed to be the main provider of financial support to a child and so, the child automatically gains the right to receive financial aid and shelter from its father. There is also the right to inherit, as well as eligibility to receive workers’ compensation benefits in case of its father's demise among other benefits.
Above all, there is guaranteed emotional, physical and psychological support when children know they can identify with both their parents.
Assuming Full Parental Rights
Whether married or not, California law expects that parents will take full responsibility for their child (children). After signing the declaration or after the court decides that they are both the child's parents, parents can proceed to make arrangements pertaining to child custody. Established parents are allowed by law to move to court to battle custody and visitation issues and any lawsuits that may come as a result, with no issues at all. However, before a parent signs a declaration, they can face serious custody, support and visitation battles.
Establishment of parentage gives both parents equal custody rights in California. According to the law, an unwed mother is the one who automatically assumed full custody of the child at birth. The mother will not be required to take any legal action just to assert her custodial rights. A father’s rights will be established once he establishes his paternity. If the father declared his paternity at the birth of his child, both parents will have equal custodial rights over that child from birth until the court decides otherwise.
If the father declines to establish paternity and the mother wants him to start supporting the child, she is allowed by law to file papers in a family court, after which a judge will order the father to take a paternity test. Once the father's paternity is established, both parents will have equal rights and responsibility for the child.
Child Custody, Support, and Visitation
An unwed mother is viewed by law as the sole custodial parent. While this may sound great for independent single parents, such a mother will have major issues when seeking child support in California, mainly because she is not married to anyone in the state. The father may voluntary provide child support but in some cases, the father may not provide anything. Some fathers start supporting their children at an early age and after some time, they stop providing any form of support to the child.
The problem is that it is not possible to force such a parent to keep providing child support without getting a court order. This is the point where the court will need to establish the man’s parentage so as to force him to continue supporting his child.
An unwed mother could seek financial help from the government. When this happens and the request is granted, the government will seek welfare refund from the father. To successfully do this, the government will file a lawsuit against him. Even in cases where the mother is not seeking welfare support, the government will still try to establish parentage before it can enforce the father to pay child support and honor his other financial responsibilities.
There are advantages that come with forced child support:
- It becomes hard for the father to escape from paying child support even if he filed for bankruptcy
- Child support is a priority legally. This means that the parent paying child support will be required to make the payment first before they can make payments to their other creditors
- There is also the possibility of child support being obligated through a salary assignment. This means that the money that the father is required to pay as child support will automatically be deducted from his paycheck before he gets the payment
- There are penalties too, in case the parent paying child support is late in making his payments. There are bigger penalties for the times he fails to make the payment
Parental Rights of the Unmarried Father
California law is arguably not fair to the unmarried father when it comes to issues surrounding their children. An unmarried father can be prosecuted if he fails to pay child support but there is minimal help and support provided to such a father if he wants to be part of his child's life. The unwed father needs a court order to see his child. Without the court order, he has no right to be with his child. While the father may make local arrangements with the other parent of the child for both parents to be part of the child's life, such arrangements are not acknowledged by the courts. The only way a father can confidently exercise his full rights as the child's father is by seeking court orders and waiting for the judge to decide whether he will be the custodial parent or he will be granted visitation rights.
Child custody guidelines might not be fair as well; they affect the unwed father more. In California, child custody is computed using both parents’ gross income plus the percentage of the time each parent will spend with the child. In most cases, the court will not take into account the amount of time the child will spend with its father unless there is already a court order regarding the father’s visitation rights. Without such an order, the time the father shares with the child will be set at 0% and this means that he will automatically get the maximum child support requirement.
The Role of the Courts in Resolving Child Custody Issues for Unmarried Parents
Even when the law seems so unfair, the courts try to neutralize the matter to ensure that both parents, even though unmarried, are enjoying their parental rights fully as well as exercising their obligations towards the child. When one parent gets the custody of the child, the court will now proceed to issue an order requiring the other parent to provide support for the child. In other circumstances, the other parent may just be required to provide financial support to the custodial parent temporarily.
If the other parent has been taking their parental obligations seriously, it is important for the custodial parent to provide evidence to that effect so that the court will act fairly when resolving custody, visitation and child support issues in the event the two parents separate.
Note that unmarried parents in California cannot make an effective parenting plan that could be acceptable by the law. If there is a need for a parental plan, both parents may have to move to the courts to enforce the plan they have in mind. The decision of the judge will be enough to legally bind any agreement they have between them, after which none between the two will be expected to go against the plan.
The court helps a lot especially in a case where the mother is left to take care of the child alone. This mother can move to the court, seeking child support from her child’s biological father. The intervention of the court means that whatever the court rules will be legally binding and the two parents cannot make any other arrangements other than what was agreed in court.
In case of an uncooperative mother who is preventing the child’s biological father to visit or even support his child, the father may need to move to the court too. With a lawyer by his side, the court will issue a binding order that will provide the father with either custody or visitation. With such an order in effect, the uncooperative mother will not have any other choice but to let the father exercise his rights and obligation over his child.
Find a San Diego Divorce Attorney Near Me
The law treats unmarried parents differently from the married ones and so, issues surrounding child custody, support and visitation rights may be resolved differently for the unmarried parents. The good thing is that California Law provides enough protection for parental rights of the unwed parents. This means that in case of separation, the law can easily and quickly help determine the custodial parent, the visiting parent, and the parent who will be paying child support. If you are having a hard time making plans with your co-parent, or your parental rights have been denied and you need help, talk to a San Diego Divorce Attorney through 858-529-5150. Our advice and support will ensure that all issues you are having pertaining to child custody are resolved as soon as possible.
