Wail Sarieh
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What Are The Rights Of Unwed Fathers In California

Family Law

In the past, the parental rights of unmarried fathers were either ignored or given little consideration by the courts, and few unmarried fathers were prepared to fight for their parental rights. In recent years, however, unmarried fathers have more frequently insisted on exercising their legal rights, and the courts have been affirming those rights. Today, of course, unmarried parents share many of the same legal challenges that divorced parents face when it comes to child custody, visitation, and support issues.

In any legal dispute that involves a child in this state, the top, overriding priority for the courts is the best interests of the child. While the courts recognize and honor parental rights, including the rights of unmarried fathers, California judges will always place a child’s best interests above all other considerations.

For most unmarried fathers, this is good news, because an unmarried father’s rights naturally coincide with a child’s best interests. The courts recognize that giving a child a chance to bond with his or her father is almost always in the child’s best interests.

HOW IS LEGAL FATHERHOOD DETERMINED?

How is legal fatherhood determined? Under the California Family Code, a father married to a child’s mother is the child’s natural parent. (“Natural parent” in this instance simply means a nonadoptive parent, whether biologically related to the child or not.) When both unmarried parents sign a Declaration of Paternity, they are the legal parents of the child. Signing a Declaration of Paternity is voluntary.

If the parents sign a Declaration of Paternity when the child is born, both names go on the birth certificate. If the Declaration of Paternity is signed later, a revised birth certificate can be issued.

A properly signed Declaration of Paternity is comparable to a court order establishing parenthood, except that no one has to go to court. Once signed, it must be submitted to the California Department of Child Support Services.

Anyone signing a Declaration of Paternity should keep in mind that once legal fatherhood is established in this state, it can be exceedingly complicated and sometimes impossible to undo, even if testing later proves that someone else is, in fact, the biological father.

On its website, the California Department of Child Support Services tells us, “Unmarried parents who sign the Declaration of Paternity form help their child(ren) gain the same rights and privileges of a child born within a marriage.

Some of those rights include: financial support from both parents, access to important family medical records, access to the non-custodial parent’s medical benefits, and the emotional benefit of knowing who both parents are.”

WHAT ARE THE RIGHTS AND RESPONSIBILITIES OF “LEGAL” PARENTS?

After legal parenthood is established in California, each parent has an equal right to custody of the child and has an equal legal obligation to support the child financially. Legal parents assume both full legal rights and full legal responsibilities for their children. For example, if you are an unmarried legal father in California and you do not live with your child, a court may order you to make child support payments.

Although unmarried fathers are expected to support their children and may be prosecuted for failing to, unmarried fathers in California often must take legal action to protect their parental rights to visitation and child custody. In Southern California, an experienced Orange County family law attorney can advise and represent an unmarried father in any legal dispute with the child’s mother regarding custody, visitation, or child support.

Whether parents are divorced or never married, child support disputes in California are not always concluded simply because an agreement is reached between the parents or a child support amount has determined and ordered by the court. Whether a child support arrangement was ordered or agreed upon, sometimes that arrangement must change.

Injuries, illnesses, new jobs, relocations, new spouses, and even new children are among the reasons why a child support order may require modification. Life changes, so modifications of child support orders are common and are handled routinely by the courts in our state.

WHAT IF THE CHILD SUPPORT ARRANGEMENT NEEDS TO CHANGE?

Once a child support order has been issued by a judge, unmarried parents in California cannot change the arrangement independently without informing the court. Even if the parents mutually, verbally agree to change the amount of child support, if you are an unmarried dad, you must protect yourself. In Southern California, an experienced Orange County family law attorney can help you make the child support arrangement formal and binding by asking a judge to sign it.

If you are an unwed father and you are unable to reach an agreement with the child’s mother regarding custody or visitation, a judge will make the decision for both of you. However, prior to any trial or hearing regarding visitation or custody, the state of California requires both parents to meet with a trained counselor who will try to help you agree upon a custody and parenting plan.

In some California counties, the counselor will make a custody and visitation recommendation to the judge. In most cases, an unmarried father will be granted visitation rights, but if a mother is a reasonably good parent, it may be tough for an unmarried father to win a custody dispute.

Once again, and it cannot be stressed strongly enough, the best interests of the child are the overriding consideration of the courts in any child custody matter, and the child’s best interests will always prevail over the rights of either parent in a California courtroom.

The court will consider a number of factors in deciding custody, including who the primary caregiver of the child has been, the financial status of the parents, and the moral character of each parent including any criminal record. If a child is old enough, the child’s wishes will also be considered by the court.

This has been a general look at the rights of unmarried fathers in California, but for specific legal advice regarding any particular case, an unmarried father should consult an experienced Orange County family law attorney. Family lawyers in the 21st century are representing more unmarried fathers than ever before, and that’s good. As noted previously, an unmarried father’s rights almost always coincide with a child’s best interests.

Wail Sarieh
By Wail Sarieh