Most unmarried fathers often feel oppressed by the state’s legal system. Unless they establish legal paternity, they don’t have legal or physical custody of their child.
Most of the time, the child custody amount the father has to pay is calculated using the gross income of both parents and the percentage of time they spend with their child. For this reason, if the unmarried father establishes paternity but has no court order that enforces visitation rights, the court will set child support at the maximum level. This is because the percentage of time they spend with their child will be considered as zero.
Unmarried mothers have both physical and legal custody of the child and can decide whether to allow the child to see their father or not. However, even if they allow the child to spend time with their father, the court won’t consider such an arrangement unless the unmarried father seeks a court order regarding visitation.
Even though California law treats unmarried fathers differently, they can still fight for their parental rights in several ways discussed below.
California Fathers Rights
Unlike their married counterparts, unmarried fathers aren’t automatically assumed as the child’s biological parents, even if their name appears on the birth certificate. For example, under California law, if a child’s biological mother and father aren’t married to each other, the unmarried father isn’t recognized as the legal father until they take steps to establish paternity.
The unmarried father lacks legal rights and isn’t obligated to provide for the child financially. For this reason, the child’s mother can’t file a request for child support from the unmarried father until legal paternity is established.
How Can an Unmarried Father Establish Legal Paternity?
Paternity is the act of establishing the identity of the child’s legal parents. If it’s established that the unmarried father is the child’s legal father, they have a financial obligation to support the child and may request custody and parenting time. The unmarried father can establish paternity in the following ways:
Voluntary Declaration of Paternity
Paternity can be established when the unmarried father and mother sign a voluntary declaration that they’re the child’s biological parents. Voluntary declaration of paternity is the easiest way for unmarried fathers to establish parentage. For the declaration to be considered valid, it has to be notarized or signed at the local:
- child support agency;
- welfare offices;
- superior courts in the presence of a family law facilitator;
- registrar of births office.
After both parents sign the declaration at any of the following offices, they’ll need to file it with the state’s Department of Child Support Services. They can also request a new birth certificate that indicates the father’s name.
In some instances, if the unmarried father was present at the hospital at the time of the child’s birth and was presented with a Voluntary Declaration of Paternity, they can use it to prove paternity. The Declaration of Paternity form can only be valid if both parents sign it. When legal paternity is established, the unmarried father assumes all rights and responsibilities of their child.
Court-Ordered Paternity Test
Another way of establishing paternity is through court-ordered genetic testing or DNA test. For instance, when the unmarried father and mother disagree about paternity or want to identify the biological father, the court may order the unmarried father to take a paternity test.
The genetic test is administered by collecting samples such as a buccal swab of the cheek from the father, which are then sent to a laboratory and compared with the child’s sample. Suppose the DNA test shows a 99% probability that the unmarried father is the biological father. In that case, the unmarried father has the legal right to have a relationship with their child.
Action by the Local Child Support Agencies (LCSA)
The unmarried father can contact their nearest LCSA office and ask to open a parentage and support case if there’s a dispute over the child’s parentage. The LCSA may consider the father’s request and bring action to establish parentage by ordering a DNA test.
The Importance of Establishing Paternity Explained
Establishing paternity is key to determining the child’s right of inheritance, medical insurance, and other derivative social security benefits. Moreover, the mother can’t move away with the child without leave of court if the father objects to the move.
After establishing legal paternity, the unmarried father can file for joint legal custody of the child. With joint legal custody, both parents can equally share parental responsibilities and be involved in the decision-making process regarding the child’s welfare.
In California, family law judges usually view joint custody as being in the child’s best interests. However, the judge will consider factors such as parental drug abuse, history of child abuse, or domestic violence before granting joint custody.
The unmarried parents can also reach an amicable agreement on sharing parental responsibilities and creating a parenting plan.
The parenting plan should include the following details:
- the child’s education;
- decisions regarding the child’s healthcare;
- travel arrangements;
- custody exchange location and time;
- rules for communication between the co-parents;
- holiday, weekend, and vacation schedules.
Unmarried parents should ask the court to formalize their amicable agreement to avoid issues in the future. If the amicable agreement isn’t in writing and ordered by a judge, it isn’t legally enforceable and can be disputed later by one party. For this reason, both parents should ensure the parenting plan is enforceable in court to safeguard the child’s best interest.
Can an Unmarried Father Take a Child From the Mother?
California law doesn’t allow the unmarried father to take a child from their mother if paternity isn’t established yet. That’s because the mother has both physical and legal custody of the child immediately after birth. This also gives them the power to make every major decision for the child, such as:
- extracurricular activities;
- and so on.
Establishing legal paternity is the only way an unmarried father will have the right to see their child and make decisions regarding their wellbeing. The court may only grant the unmarried father sole custody of their child if they demonstrate that the child’s biological mother isn’t fit to raise the child.
If You are an Unmarried Father with Questions About Parental Rights, Contact Castro Law Offices Today
If you are seeking to establish parentage as an unmarried father, or have questions about establishing parentage in general, Castro Law Offices stands ready to help. Castro Law Offices is a premier California law firm specializing in paternity issues, divorce, child custody, and all other issues concerning domestic relations. Castro Law Offices is based in Novato, California, but is ready and able to provide legal services and advice to clients in and around Marin County including Novato, San Rafael, Greenbrae, San Anselmo, Fairfax, Sausalito, Larkspur, West Marin, Ross, Mill Valley and Corte Madera. Contact Castro Law Offices today to schedule a confidential consultation.