How to maintain your right to a relationship with your children
As a father, you have the right to a relationship with your children. Children have a right to a relationship with both parents, if that is what they desire. The state laws typically enforce parental rights and see to it that both parents are given an equal opportunity to pursue relationships with their children. California state laws are designed to prevent the court system from interfering in these relationship unless it in absolutely in the child's best interest.
Father's Rights: Establishing Paternity
Paternity is the term the government uses to assign a specific male as the child's father. Establishing parentage benefits the child emotionally and it legally entitles him or her to the same privileges and rights of a child with married parents.
In the case of married couples, parentage is usually not an issue. Often, the identity of the child's father is assumed by the law. For instance:
- the mother's husband is assumed to be the father of a child born into a marriage
- a male who lives with the mother as a family and who has demonstrated commitment to the child is considered to be the father of the child, even if not biologically.
Parents may establish paternity by signing a voluntary declaration of paternity to acknowledge that they are the parents. The birth certificate will contain the father's name, and the father will assume all responsibilities and rights to the child.
However, in the case of unmarried parents, paternity has to be legally established. In California, paternity can be established by taking a paternity action to court. Under California law, the following people or agencies may request a paternity order:
- the mother of the child
- a male who believes he is or has been identified as the child's father (alleged father)
- a child support agency acting on behalf of the child's mother
- an adoption agency
In most dependency cases, fathers start off as alleged fathers because the mother has identified you as the father to the social worker, or because you show up at the hearing claiming that you are the father. At this point, your rights are minimal, until you prove that you are in fact a presumed parent. The most common method for proving that you are, in fact, the child’s father, is through a court-ordered DNA analysis.
If a DNA test proves that you are the child's father, or if you have a paternity judgment from family law court, you are considered a biological father to the child. This gives you the same rights as that of the mother, including the right to pursue a relationship with your child. The judge may order genetic testing to determine paternity, and if the possible father refuses to comply, the lack of cooperation may be considered evidence of paternity. The court may also order:
- child support
- health insurance for the child
- visitation for non-custodial payment
- legal or physical custody of the child
- payment for genetic testing, court costs, and legal fees.
Presumed Father’s Rights
You may be a presumed parent if your name is on the child's birth certificate, if the family court order establishes a parental relationship, or if you have raised the child as your own. As a presumed parent, you have the right to seek custody, visitation, and reunification services. It is important to understand that in California, family law allows a child to have more than two legal parents. A child may have a legal mother due to biology, a presumed mother who was married to her legal mother when the child was born, and a presumed father through biology and because he tried to establish a relationship with the child. Naturally, these allowances can lead to complex legal struggles when families face relationship breakdowns. In same-sex relationships, the non-biological parent must request that the court establishes legal parentage.
Children younger than twelve years of age may not be party to a paternity action by testifying in court, but the court sometimes appoints a guardian ad litem who will represent the child's best interests.
Custody and Visitation Under California Fathers' Rights
California state laws determine that both parents may seek custody and visitation and the mother and father should be treated equally, regardless of the relationship between parents, or whether they were married at the birth of the child. The court considers the child's best interest to be the golden standard when it comes to deciding on custody and visitation. It strives for involvement from both parents, unless that poses a threat to the child's safety or wellbeing.
As a father, you have the right to regular, frequent contact with your children. It would be a good idea to enlist a San Diego family attorney to help protect your rights.
In recent years, custody has been awarded to fathers more often than before. The judge must evaluate various factors regarding the situation, including both parents' ability to provide and care for the child. The relationship between the parents and kids is considered before a final decision is made.
Some mothers will make false allegations of domestic abuse in order to keep a father away from his child or to win sole custody. Of course, the allegations will impact severely on the father's rights. It is important that the father opposes the false allegations and conducts depositions in order to contest such claims.
Physical custody is not only about the time you spend with your child, but also about your involvement in the child's life, school and out-of-school activities.
In California, the court favors joint legal custody, which involves both parents making mutual decisions regarding the child's life, including health, educations and general wellbeing. It is a father's right to be involved in every aspect of his child's life, including decisions relating to his child's:
- health, including medication and doctor's visits;
- school attendance and extra curricular activities;
- general activities.
As a father, you have the right to be listed on your child's medical and school records, and the right to receive information relating to your child.
Fathers' Rights and Child Support
One parent may be named primary custodian while the other would be the non-custodial. The primary custodian will decide where the child lives and spends most of his or her time. Depending on circumstances, the non-custodial parent will receive visitations based on a schedule that will be in the child's best interests. There are different types of visitation, namely:
- weeknight visitations
- weekend visitations
- supervised visitations
- unsupervised visitations
The primary custodian may seek child support assistance, which is usually a sum of money paid by the non-custodial parent. Child support helps the custodial parent to meet financial responsibilities relating to the child's upbringing and includes:
- school fees
- medical fees
- living costs (shelter, food and clothing)
Since fathers have an equal right to seek child support as a primary custodian, they may seek legal action if they do not receive child support. The same rights apply to single fathers.
Violation of Fathers' Rights
If your child's mother makes decisions about your child without your consent or input and it violates the joint legal custody order, you should speak to a San Diego family lawyer about the options available to you. One such option includes a contempt of court action, which is available in the case of a serious infraction. If she has the means available to her, you may even seek attorney fees against her.
If your child's mother violates the court order regarding visitation, you may:
- send her an email documenting the violations;
- request that she adheres to the court order, and ask her to confirm her agreement to do so in writing.
It is important to have details of the violations in writing to help protect your rights. If you speak to her in person, be sure to follow up the discussion with an email too. In the event that your child’s mother continues to violate your rights as a father, you may file a request for child custody modification, a contempt action, or both. Be sure to work through a San Diego divorce attorney who has the experience and skills to help you secure the best outcome for you and your children.
Father's Rights to an Unborn Child
Pregnancies are not always planned, and even when they are, life happens and couples may choose to no longer be together. If your ex-partner is pregnant, you still have rights to your unborn child.
Since an unborn child is in the mother's womb, you can hardly demand visitation. Parenting time obviously only applies after birth. However, child support may apply to an unborn child as there are costs involved in preparing for a child. Speak to your lawyer about your options in terms of child support and remaining an active part of your child’s life.
As a father to an unborn child, you must remain as involved in the process as the mother allows you to be. If she excludes you from the process, you should hire a child custody attorney even before the child is born.
The attorney will prepare a paternity petition if you are not married, or a divorce petition if you are currently married, but intend to divorce. It is rare for individuals in this situation to be married and not planning to file for divorce, but if that is the case, you may proceed with a child custody hearing only.
A father's rights commence immediately on the birth of a child, which means that you may seek custody or visitation immediately.
Father's Rights and Child Support
It is not uncommon for high income earning fathers to be asked to support mothers who refuse to work. However, in California the law determines that child support be consistent with guideline standards. A computer programme generates the child support amount based on various factors.
Naturally, you want your children to maintain a certain lifestyle, and you have the right to obtain a court order to require the mother to make a good faith effort towards becoming employed. As part of the court order, she will be required to send out resumes, attend interviews and actively seek employment. According to California Family Code 4053, being a stay-at-home mother is not a legal right and both parents are responsible for financially providing for the child. You may request an imputation of income if the mother has the opportunity and ability to work, but refuses to do so.
Likewise, children should not be used as pawns in financial negotiations between their divorced parents. If your child's mother is using them as leverage, it should be brought to the court's attention immediately. A paper trail documenting her misconduct and refusal to change will go a long way in court, so be sure to keep all communications in writing.
However, not all fathers are that well-off financially. You may become unemployed or ill and unable to meet your financial obligations. If, for whatever reason, you are unable to keep up with court ordered child support payments, ask the court to provide you with a payment plan or a child support modification request to help you through this difficult time. An experienced San Diego family law attorney can help you with this process.
Because California law views parents as equals, a lower-income father who has custody of his children may also seek child support from a higher-income earning mother. The mother would therefore have the same rights as a father in the same situation as outlined above.
Get Help With Your Father's Rights in California Today
If you need help obtaining a favorable California child custody order, or if you need help in negotiating a fair opportunity to seek a relationship with your children, a San Diego Divorce Attorney can assist. Call us today to book your initial case review at 858-529-5150.