Divorce and custody go together about as often as peanut butter and jelly. Hence, it’s easy to see why parental rights and marital rights sometimes get mixed up.
But—just like you don’t have to pair peanut butter with jelly—you also don’t have to be married to be a parent. Which is why parental rights are kept completely separate from the marriage relationship.
Hence, whether you are married, divorced, widowed, partnered, single, or unmarried, parents everywhere have the same rights and responsibilities to their child, regardless of relationship status. That being said, unmarried parents may still face some additional hurdles, when it comes to child custody.
Here are some of the most common questions that arise for unmarried parents in California, and how the Maples Family Law team can help you navigate these challenges.
Presumption of Parenthood
We meant what we said in our intro about parental rights: all California parents have the same parental rights and obligations, regardless of relationship status.
But if that’s true, you might be wondering, then why do unmarried parents in California face additional challenges?
The primary reason that unmarried parents are in this conundrum is because of California’s presumption of parenthood, which assumes that any child born into a marriage is the legal offspring of the individuals in that marriage.
This presumption is great, if you’re a legally married couple, because it allows you to automatically assume the mantel of parenthood (and all of its accompanying rights and responsibilities) without any hoopla. However, there are two main instances when the parenthood presumption falls short:
When both parents are unmarried.
When one parent is married, and the other is not (a.k.a.: adultery).
In both of these instances, California’s presumption of parenthood either wrongly presumes who the parents are, or simply fails to cover one half of the duo, altogether.
Because of this, unmarried parents may have a few more hoops to jump through, in order to establish themselves as legal parents—however, this does not mean that the rights of unmarried parents are any different.
The Rights of Unmarried Parents
Whether adopted or biological, the job of a parent comes with a lot of authority, decision-making power, and responsibility over a child. This authority is what’s roughly defined as child custody, which is divided into two main categories:
Legal Custody—the right to make decisions on behalf of your child, and to determine how they will be raised.
Physical Custody—the right to see your child, spend time with them, and have them live in your home.
These parental rights are given a lot of deference by California courts, and—whether you are married or unmarried—they will not be taken away unless it’s absolutely necessary for a child’s best interest.
However, because the presumption of parenthood falls short, unmarried parents will need to establish themselves as a child’s legal parent, before they are able to exercise these rights.
Establishing Parentage
The nature of the birthing process doesn’t leave a lot of room for doubt as to who a child’s mother is. Hence, a birth mother is automatically considered a child’s legal parent—with full legal power and parental authority—as soon as her child is born.
Unmarried fathers, on the other hand, are not given this automatic presumption, unless they have already been living with their partner in a family-type setting prior to birth. If not, however, the unmarried father will be unable to claim rights to things like custody or visitation until they are recognized by the court as a legal parent.
This can be done one of two ways:
By mutual consent of the parents, upon the child’s birth.
Through a court trial.
Here’s a closer look.
1. Consent at Birth
The easiest way to establish paternity is for both unmarried parents to sign a Declaration of Parentage, upon their child’s birth.
If this form is completed before you leave the hospital, then an unmarried father can be included on their child’s birth certificate right from the get-go. However, this declaration can also be signed later on—even after the birth certificate has been issued—so long as it is voluntarily executed by both parents.
In the event that an unmarried mother refuses to recognize her child’s father, or, if the father does not want to take responsibility for their child, then things will need to be settled in court. Which brings us to the second method of establishing parentage.
2. Court Contested Parentage
The second way to establish parentage is through a judge.
This is obviously a more complex (not to mention emotional) method of establishing parentage. On the bright side, however, these days it is also a fairly straightforward process, thanks to DNA testing.
In California, either a mother or a father can file a parentage case, so long as they meet California’s six months residency requirement, and can show that they have a valid claim.
Typically, the court will respond to these petitions by ordering a non-invasive DNA test (or, in other words, a mouth swab). Refusing to take this test is usually considered an admission of guilt, and the court will assign parentage, accordingly.
Keep in mind, however, that you can’t take the perks of parenthood without the responsibilities. If the court determines that you are, in fact, a child’s legal parent, then you will be responsible for more than just playtime and decision making—you’ll also be on the line for your child’s care, too, which will likely include child support.
Once this parentage is legally established, both parents will need to draft a parenting plan, which will organize your respective rights and duties as co-parents.
California’s Third Parent Law
Historically, same sex couples have faced a lot of problems in the areas of parentage and child custody. This is because—even when they are legally married—it’s impossible for both spouses to be their child’s biological parent.
Because of this, the presumption of parenthood is inherently prejudiced towards them, acting as a barrier to legitimate parents, who are unable to assume parental rights upon their child’s birth.
The problem is, of course, how do you extend these rights to same sex parents, without accidently infringing on the rights of a birth mother (who may not want to give up her rights, altogether)?
Thankfully, California legislatures are working hard to address these issues, and in 2013 they adopted a groundbreaking “Third Parent Law.” Under this new rule, three, gender neutral parent lines are now provided on a child’s birth certificate, allowing a birth mother to retain her rights, while also giving committed, same sex couples and spouses full parenting rights immediately upon their child’s birth.
Unmarried Parents Attorneys in California
Whether you’re a peanut butter and jelly couple, a single condiment parent, or some other kind of sandwich, altogether, parental rights are the same, regardless of your relationship status.
Hence, if you’re an unmarried parent in California, and have more questions about the rights and obligations of you and your child’s other parent, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure your child’s best interests are being met.
