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.
If you’re like many people, you’ve heard the term parentage by estoppel – but what does it mean in California, and how does it affect your child custody case?
What is Parentage by Estoppel in California?
Paternity is often assumed in California. That means the courts assume that the person involved in the child’s life is his or her father. Cases in which the court assumes paternity include:
When the father was married to the child’s mother when the child was conceived or born.
When the father attempted to marry the child’s mother when the child was conceived or born, but something made the marriage invalid.
After the child was born, the father married the child’s mother and agreed to have his name put on the child’s birth certificate, or he agreed to support the child.
After the child was born, the father openly treated the child as his own.
That last one – where the father openly treats a child as his own – is called parentage by estoppel.
Parentage by estoppel doesn’t require a biological relationship. A father doesn’t have to be related by blood.
This is important to know if you’re working out a child custody agreement. Fathers who aren’t biologically related to a child may have rights when it comes to custody – and responsibilities when it comes to child support.
It’s called parentage by estoppel because once it’s established that the father held the child out to be his own, he can be held liable for child support.
What Does “Treating a Child as His Own” Mean?
A father who spends time with a child, or whose child calls him “Dad,” can be legally considered the child’s father. The adults in the situation hold out the child as theirs, and the father supports and fosters the relationship with that child.
The main idea behind parentage by estoppel is the child’s best interest. If a child has gone his or her entire life treating someone as a father – even if the person is not biologically related to the child – it’s typically best for the child to continue having that person as a father.
In California, a party can ask the court to establish parentage or sign a declaration of paternity form. This isn’t necessary when parentage is assumed (like in one of the situations listed above, such as when the father and mother are married when the child is conceived or born). However, it is necessary when the parents aren’t married – especially if the mother doesn’t want the father involved in the child’s life after a split.
Here’s an example:
Carrie and Bob aren’t married, and they break up before their child, Sarah, is born. Bob has to establish parentage if he wants to get child custody or visitation with Sarah. Otherwise, he has no claim to her.
If Bob doesn’t want to get custody or pay child support and denies that he’s Sarah’s father, Carrie has the right to ask the court to order him to submit to genetic testing.
Rights and Responsibilities After Establishing Parentage
When parents have been established legally, they have the following rights and responsibilities:
The right to request parenting time
The right to request custody orders
The responsibility of paying child support
The responsibility of paying healthcare costs (in some cases)
The responsibility of paying child care costs (in some cases)
Parentage by Estoppel in California
Even if a father has openly treated the child as his own, it’s often still a good idea to establish parentage. (Again, though, it’s not necessary if the parents were married or parentage is otherwise assumed.)
Do You Need to Talk to a Lawyer About Parentage by Estoppel in California?
If you’re going through a divorce, or if you need to talk to a lawyer about parentage by estoppel in California, we may be able to help you. Call us right away at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation today.
If you’re like many people, there’s a lot you don’t know about LGBTQ divorce. Is it the same as every other divorce, or are there nuances that make it different (or that would make your case harder)?
These are five things you need to know about LGBTQ divorce – but if you have more questions, or if you need to file, call us right away at 209-546-6870 to schedule a consultation with an experienced LGBTQ divorce attorney in Stockton.
LGBTQ Divorce: 5 Things You Need to Know
In the majority of cases, LGBTQ divorce is just like every other divorce. However, there are some things that can make it more complicated (again, like all other divorces), including issues like alimony, child custody, and the division of business assets. Here are five things you need to know about LGBTQ divorce:
If you have children, you’ll have to work out a custody arrangement.
One of you may be entitled to alimony.
You may need to hire a professional to value your business.
If you lived together long before you were married, it could affect what you’re entitled to.
If your child was born before you were legally married, you may encounter complications.
Let’s take a deeper look at each of these.
LGBTQ Divorce Fact #1: If you have children, you’ll have to work out a custody arrangement.
Like all parents, if you have children, you’ll have to work with your soon-to-be ex-spouse to work out a custody arrangement. In the vast majority of cases where parents work out an arrangement that’s fair to the kids, the courts will sign off on it.
LGBTQ Divorce Fact #2: One of you may be entitled to alimony.
Depending on the circumstances of your marriage, one of you may be entitled to receive spousal support. You or your spouse can ask the court to grant it, and it’s up to the judge in your case to decide – unless, of course, you work together to reach a fair amount that the judge agrees to. The courts decide how much spousal support changes hands based on several factors, including:
The supported spouse’s marketable skills, and whether there’s a job market for those skills
How long the supported spouse was unemployed in order to contribute to domestic duties in the marriage
How much the supported spouse contributed to the other spouse’s education, training, licensing or career advancement
Each spouse’s age and health
Documented history of domestic violence by either spouse
LGBTQ Divorce Fact #3: You may need to hire a professional to value your business.
If you own a business that you need to divide during your divorce, it’s probably in your best interest to work with a professional to value it accurately. The form of the business you own – whether it’s a sole proprietorship, partnership, or corporation – has an effect on how it’s divided. For example, a sole proprietorship is divisible when you divorce, but other types of companies are more nuanced and probably require professional help.
LGBTQ Divorce Fact #4: If you lived together long before you were married, it could affect what you’re entitled to.
Traditionally, California courts have ruled that spousal support lasts for about half the length of a marriage if the marriage lasted less than 10 years. Unfortunately, though, current California residents who were together for a long time but couldn’t marry in their own state – like Texas, for example, until 2015 – have been married for far less than 10 years but together for longer.
In cases like these, it’s often best to work with a divorce mediator who can help you.
LGBTQ Divorce Fact #5: If your child was born before you were legally married, you may encounter complications.
If you have a child who was born before you were legally married to your spouse, you probably need to establish parentage (if you haven’t already done so). This is necessary if you’re going to work out custody and child support, and it’s something you’ll have to talk to your Stockton divorce attorney about if you’re a divorcing parent – particularly if you’re not biologically related to your child.
Do You Need to Talk to a Stockton Divorce Lawyer About LGBTQ Divorce?
When you and your spouse are splitting up, it’s rough – but we can help you through the legal side of it. Call us right away at 209-546-6870 to schedule a consultation with an attorney, whether you’re just thinking about divorce, you’re completely ready to file, or your spouse has already filed. We may be able to help you get the best possible outcome.
In the state of California, parental rights for fathers are incredibly important – and they’re equal to maternal rights. Under state law, fathers have just as much right to see, spend time with and bond with their children as mothers do, and the state (as well as the courts) recognize how important it is for both parents to be active participants in their kids’ lives.
Parental Rights for Fathers
When parents are married at the time of a child’s birth, paternity is presumed. That means the mother’s husband is automatically considered to be the child’s father. That extends past marriage, though – if a child is born and someone is living with the family and fulfilling a fatherly role (by demonstrating a commitment to the child), that person can also be considered the child’s father, even if he isn’t biologically related.
If neither of these circumstances are present, you need to establish your paternity.
California’s Parental Rights: Fathers’ Rights to Custody and Visitation
As a father, you have the absolute right to seek custody and visitation rights with your children. The law doesn’t discriminate between dads and moms – instead, each parent has equal rights (and equal responsibilities) when it comes to being with the kids.
There are two types of custody: Legal and physical.
Legal Custody
Physical Custody
Legal custody refers to a parent’s authority to participate in big decisions about the child’s health, education and welfare. Most parents share legal custody.
Legal custody refers to a parent’s authority to participate in big decisions about the child’s health, education and welfare. Most parents share legal custody.
If you and your spouse don’t agree to who gets legal and physical custody between yourselves, either as joint custody or full custody, the judge in your case will decide for you. When the judge has to decide, he or she will look at several factors – but the bottom line is that the judge’s decision is supposed to be based on what’s best for the children.
These are some of the factors judges look at in deciding who gets custody in California:
The child’s age
The child’s health
The emotional ties that exist between each parent and the child
The child’s ties to school, home and the community
The ability of each parent to emotionally, financially and physically care for the child
Whether there’s a history of family violence
Whether there’s a history of substance abuse in the family
Do You Need to Talk to a Lawyer About Parental Rights for Fathers?
If you’re not sure where you stand in all of this, you’re not alone – a lot of people are thrown off by the fact that California, like most states, used to favor the mother when it came to rights to the children.
But that was a long time ago, and now, the law and the judges who execute it see mothers and fathers as equals.
We can help you preserve your parental rights as a father, whether you and your ex disagree about child custody, child support or anything else – and we can help you if you agree, too.
Call us at (209) 546-6246 for a divorce case review. You’ll talk to an experienced Stockton divorce lawyer who can give you the advice you need to begin moving forward.
If you have a child with someone who is not your spouse or is a former spouse, getting child support can be a necessity in order to ensure the continued health, welfare and wellbeing of both yourself and your child.If you live in California that process can be accomplished by requesting an order for child support from the appropriate court. A court order can be requested either directly by going to the court or indirectly through a local child support agency. However, how the process is initiated will depend on whether or not you already have an open family law case.
Who Can Seek Child Support?
Anyone with a child can request child support from the other responsible party. For example, single mothers can request that the biological father pay support, same-sex couples, where both parents are the legal parent of the child, can request child support, and divorcing couples with children can request child support.
How Does the Court Decide Who Has to Pay Child Support?
If the parents are married at the time the child is conceived or born, then both are automatically presumed responsible and the court will usually require the non-custodial parent to pay child support to the custodial parent. However, if the parents are not married, then the parentage of the child must be established before a court can issue a child support order. (How to establish parentage is discussed below.)
PROCEDURE WHEN YOU HAVE AN OPEN FAMILY LAW CASE
It’s much easier to get a child support order when you already have an open family law case. The court recognizes several different types of family law cases, including:
Divorce cases (dissolution of marriage)
Legal Custody cases
Legal Separation
Annulment
Domestic Violence Restraining Order Proceedings
A petition of custody and support of minor children
Any local child support agency case
If you have any of the above cases already before the court, you simply need to fill out and file some forms:
1.A Request for Order (FL-300) – available online or through your local family court.
2. An Income and Expense Declaration (Form FL-150) OR a Financial Statement (simplified) (FL-155) – also available online.
**If you are unsure which financial form you need to use, form Which Financial Form – FL -155 of FL 150(DV-570) is available to assist you.
After you’ve completed the forms, you should have either a family law facilitator or a private attorney review them to ensure that they are properly filled out and ready for the court to process.
After you’ve had your forms reviewed, file them with the appropriate court. Once you file the forms, the court clerk will give you a date and time for your child support order hearing.After you’ve been given a court date, you MUST serve the papers on the other parent.
Serving The Other Party
It’s important that the other party is properly served. Failing to properly serve the other parent can cause unnecessary delays in getting your child support order. To properly serve the other party, have someone over the age of eighteen either give the papers directly to them or mail the papers. You cannot give them the papers yourself and you cannot mail the papers yourself, a third party must do it.
The papers you serve on the other parent should include a copy of the papers you filed as well as a blank Responsive Declaration to Request for Order (Form FL-320) and a blank Income and Expense Declaration (Form FL-150).
If you don’t know anyone who can serve the papers, you can usually get a sheriff’s deputy to serve the papers. The court will be able to give you direction on how to have a sheriff serve the papers on your behalf. (There may be an extra charge for this).
After you’ve served the other parent, have the person who served the papers file a Proof of Personal Service (Form FL-330) with the court. If the papers were served by mail, have them file a Proof of Service by Mail (Form FL-335). It is imperative that the proof of service is filed. This is your legal proof that the other party was given adequate time to review and respond to your request for child support. Failing to file the proof of service allows the other party the opportunity to dispute that the papers were properly served, which could unnecessarily delay getting your order.
Now all you need to do is simply show up to your court date with your paperwork and present your case!
WHAT TO DO WHEN YOU DON’T CURRENTLY HAVE AN OPEN FAMILY LAW CASE
In this case, the steps you will need to follow will depend on whether or not you are married to your partner or in a registered domestic relationship.
Married or in a Registered Domestic Relationship
If you do not already have an open family law case, you need to first initiate a case, then follow all of the steps listed above for filling out, filing and serving the paper work.
However, not all cases are related to a breakdown in the relationship or the marriage. If you and your partner are either married or in registered domestic partnership and would still like to have the benefit of a child support order, you can start a case under a Petition for Custody and Support of Minor Children. A petition for custody allows the court to enter an order of child support as well as any other related orders.
Not Married or in a Registered Domestic Relationship
For people who are not married or in a registered domestic relationship, you can seek a child custody order by opening the following types of cases:
Domestic Violence Restraining Order
You can file a domestic violence restraining order if the other parent of your child has either emotionally or physically abused you. In this instance, you do not need to be in a romantic relationship with the person, so long as you share a child you can seek child support when you file the restraining order.
Petition for Custody and Support of Minor Children
If you already have a signed Declaration of Paternity you can file under a Petition for Custody and Support of Minor Children. If you do not have a signed Declaration of Paternity, then you will need to initiate a parentage case.
Parentage:
Parentage is perhaps the most complicated method of attaining a child support order. A parentage case is for unmarried people who share a child or children, but who do not have either a signed Declaration of Paternity or any legal documentation to establish who has legal responsibility over the child or children.
What is Parentage?
Parentage is the legal determination of who will be responsible for supporting the child.In order to be legally responsible for a child, a parent does not have to be the biological parent. Parentage can be established for adoptive parents, same-sex couples, or any person who has agreed to take legal responsibility for the child. Generally, if the child was not conceived or born during a marriage, then establishing the child’s parentage is necessary in order to seek custody, support, or visitation with the child. Once parentage is established, the legal parents are responsible for the child and failing to pay court ordered child support could have legal consequences.
Parentage is not the same as paternity.A biological father, who was never married to the mother, has no legal rights or responsibilities in relation to the child until his parentage is established.
How to Establish Parentage
Parentage can be established in several ways, including:
Signing a Declaration of Paternity:
Signing a Declaration of Paternity is voluntary and can be done either at the hospital when the baby is born or at a later date. Once a Declaration of Paternity is signed and filed with the California Department of Child Support Services, the signer becomes the legal father of the child. Once the declaration is signed a court order is no longer needed to establish parentage.
Providing Proof Of Giving Birth To The Child
Providing A Court Order Of Adoption
Asking A Local Child Support Agency To Bring An Action To Establish Parentage
California law provides a presumption of paternity in certain cases. When there isn’t a presumption of paternity, then DNA testing can be done to establish paternity.
A. Presumptions of Paternity:
Paternity is presumed when:
A child was born during a marriage or within 300 days after the marriage ended,
A child was born during an attempted marriage that appeared to be legal, or the child was born within 300 days of the attempted marriage,
There was a subsequent marriage or attempted marriage after the child’s birth,
The child is welcomed into the home and is held out to be the natural child of the presumed parent.
Once you have successfully initiated one of the above proceedings, then simply follow the steps provided in the first section: Procedure When You Have an Open Family Law Case and you are on your way to getting your child support order!
However, if you still have questions or concerns about how to file your child support case or if your case is unique in some way, you should speak with a knowledgeable family law attorney or a family law facilitator.
