January 3, 2014 By Paul Wallin

What happens if you have a child and you are not married? What if you are not living with the other parent? What custody and visitation rights does each parent have when the child is born? Who gets to take the child home from the hospital? What will happen if one parent takes the child to their home and the other parent calls the police for help? How do you establish custody rights if you are not married?

The answer is that the police will likely do nothing to assist either parent until there is a court order in place. When a couple has a child and they are not married, they must go to court to obtain a legal court order in order to establish parental rights to that child. Until that happens, neither parent has legal custody of the child.

Custody Rights if You are Not Married
Call Wallin & Klarich to find out how to establish custody rights if you are not married.

If the parents were married to each other when the child was born, there is generally no question about parentage. The law assumes that the husband is the father and wife is the mother, so paternity is automatically established in most cases. This is also true of registered domestic partners.

But for unmarried parents, parentage of their children needs to be established legally. These cases are called parentage or paternity cases. After a hearing on a Petition to Establish Paternity filed by either the father, mother or by the Department of Child Support Services, the court will decide who the parents are. An alternative to court action is for the parents to sign a voluntary declaration of paternity.

Establishing Custody Rights if You are Not Married without Going to Court

A voluntary Declaration of Paternity is a California governmental form that, when signed by both parents, establishes them as the legal parents of the child. The form must be signed voluntarily. No one can force either the father or the mother to sign the form. The purpose of the Declaration of Paternity is to officially and legally establish who the father of the child is when the mother and father are not married to each other.

A properly signed Declaration of Paternity has the same effect as a court order establishing paternity for the child without anyone having to go to court. Once the declaration is signed, the form must be filed with the California Department of Child Support Services Paternity Opportunity Program (POP) in order to be effective.

Getting a Court Order to Establish Paternity

A Paternity lawsuit is a legal proceeding that allows unmarried parents to resolve issues similar to those dealt with in a dissolution proceeding but is limited to the issues of custody, visitation and child support.

Establishing “parentage” means establishing the identity of the child’s parents. A parentage action begins by one party filing a “Complaint to Establish Parental Relationship” with the court. The party filing the complaint is known as the “plaintiff” and the other party is the “defendant.” Similar to a dissolution proceeding, a parentage action ends with a “Judgment,” which will contain orders from the court relating to every issue raised in the case. Such a judgment may be obtained by default, by agreement of the parties or after a trial.

Temporary orders from the court are also available in parentage actions. Once parentage is established, issues such as child custody, support and visitation will be handled under the same rules as they are in a dissolution proceeding.

California law authorizes paternity tests in cases where parentage is disputed. The mother, child and alleged father will be required to submit to paternity testing. If a party refuses to submit samples, the court has the power to resolve the parentage issue against that party.

In some cases, paternity tests are not admissible evidence because of a statutory presumption of parentage. If, for example, the mother in a parentage action was married and living with her husband at the time of conception, the child is conclusively presumed to be the child of the marriage.

Similarly, a father who has voluntarily signed a parentage declaration at the hospital where the child is born may be conclusively presumed to be the father of the child. This conclusive presumption may also be rebutted in some cases if it is challenged within three years from the date the declaration was signed.

Once Paternity is Established

Once the court has established paternity, orders as to custody, visitation and support can now be made just as though the parents had otherwise been married or if paternity had not been an issue. The court will have jurisdiction over these issues until the child reaches the age of 18, graduates from high school or becomes emancipated (whichever occurs first).

Parentage and paternity actions can be difficult legal matters. That is why you should seek the guidance of the experienced family law attorneys at Wallin & Klarich. Our family law lawyers have over 30 years of experience advising and representing clients in complex family law matters including paternity issues.

Call us today at (888) 749-7428 for a free phone consultation. We will be there when you call.

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