Updated: Nov 28, 2020
Child Custody California Fathers Rights
Every family faces diverse difficult moments, even in beautiful California. When unmarried parents in California decide on a separation, they may face difficult challenges. Unlike their married couples, unwed fathers are not presumed to be the biological parents of their children, even when they are listed on the birth certificate. This prevents a mother from collecting child support from the father and a father from exercising his rights of child custody or visitation. This article discusses common situations faced by unmarried couples in California when they separate.
Establishing Parentage or Paternity
Parentage or paternity refers to the legal acknowledgment of a person as a child's biological parent. When a couple is married and have a baby, the law presumes that the husband is the biological father and the wife is the biological mother of the child. If that couple divorces, there usually is no need to establish parentage. When couples are not married no such presumption exists under the law. Parentage is only established when a person signs a voluntary declaration stating he or she is a biological parent or ,in some cases, if the court makes such determination.
When parentage is established under California family law, parents assume all rights and responsibilities involving their children. That means, a parent is entitled to seek custody or visitation as long as he or she is also financially responsible by supporting his or her child. Without a declaration, unmarried parents face the following difficulties.
The Unmarried Mother and Child Support
A common situation in California is when an unmarried mother is caring for a child without receiving any child support from the father. In some cases, a mother receives voluntary financial support by the father for sometime and the father suddenly stops paying. Whether a father was making child support payments or has never paid child support, unless there's a court order, there's no way of enforcing child support.
Mothers are entitled to apply for financial assistance from the government, but the government will in turn pursue welfare reimbursement from the father by filing a lawsuit. To get reimbursement, the government must first proof paternity. Even in non-welfare claims, the court must still make a parentage investigation before it can enforce child support and financial obligations.
A child support order provides many advantages. The parent owing support may not escape from financial responsibility any longer even if he or she decides to file for bankruptcy. Child support is given priority under the law which means if the paying parent has other creditors, child support is on top of the list of responsibilities. Also, child support can be easily enforced through wage assignment. This is when child support payments are automatically deducted from the parent’s paycheck. Finally, an enforceable child support court order is subject to penalties for late payments and nonpayment.
The Unmarried Father and Parental Rights
In many cases unmarried fathers feel cheated by the legal system when it comes to parental rights. Even when unmarried fathers are financially responsible and pay child support (and can be prosecuted for failing to do so). the government does not fight for fathers who want to be a part of their children’s lives. Without a court order, an unmarried father has no legal right to spend time with his child. The only way to enforce parental rights is to seek a court order that will enforce their rights to child custody and visitation.
Child custody court orders affect a father’s child support financial obligation because the amount is calculated using the gross income of both parents and the percentage of time that parents spend with their child.
However, a court will not consider the time a father spends with his child unless there is a court order regarding visitation. Without a child custody order, the family court will set the time-share between father and child at 0% percent which sets child support at the maximum level.
Even though the law treats unmarried fathers differently, the state of California still offers protection for unmarried parents. If you need help enforcing, and preserving your parental rights, it's a very good idea to consult with an experienced California family law attorney.