Dear Clients and Friends,
Every family faces diverse challenges, even in sunny California. When unmarried parents in California separate, they may face some very unique situations. Unlike their married counterparts, unwed fathers are not automatically presumed to be the biological parents of their children, despite the fact that they may be listed on the birth certificate. This prevents a mother from recovering child support from the father and a father from getting child custody or visitation. This article discusses typical situations faced by unmarried mothers and fathers in California when they separate.
The term “parentage” (also called “paternity”) refers to the legal recognition of a person as a child’s biological parent. When a couple is married and a child is born, the law presumes that the husband is the biological father and the wife is the biological mother. If that couple divorces, there usually is no need to establish parentage. When parents are unmarried, however, no such presumption exists. Parentage is established only if a person voluntarily signs a declaration stating he or she is a biological parent or if the court makes the determination as part of a parentage case.
Once parentage is established under California law, parents assume the full rights and responsibilities involving their children. That means, a parent may seek custody or visitation but he or she is also responsible for financially supporting the child. Without a parentage declaration, unmarried parents face the difficulties discussed below.
The Unmarried Mother and Child Support
A common situation an unmarried mother faces is one where she is caring for a child without receiving any child support from the father. Sometimes a mother receives voluntary financial support for many months, or even years, only to find that the father suddenly stops paying. Whether a father was previously making child support payments or has never contributed financial support, there is no way to force a father to pay child support without a court order.
Mothers may request financial assistance from the government, but the government will pursue welfare reimbursement from the father by filing a lawsuit. In order to get reimbursement, the government must first establish paternity. Even in non-welfare cases, the court must still make a parentage finding before it can order child support and enforce financial obligations.
An enforceable child support order provides many advantages. First, the parent owing support may not evade financial responsibility by filing for bankruptcy. Second, child support is given priority under the law. That means if the paying parent has other creditors, child support goes to the head of the payment line. Third, child support can be easily enforced through a wage assignment. In that circumstance, child support is automatically deducted from the parent’s paycheck. Finally, an enforceable child support order provides penalties for late payments and nonpayment.
The Unmarried Father and Parental Rights
Unmarried fathers sometimes feel cheated by the legal system when it comes to the issue of their children. Many unmarried fathers are expected to pay child support and can be prosecuted for failing to do so. However, the government does not fight for fathers who attempt to enforce their right to be a part of their children’s lives. Without a court order, an unmarried father has no legal right to see his child and any informal agreements between parents are not recognized by the court. The only recourse for unmarried fathers is to seek court orders that will recognize and protect their rights to child custody and visitation.
Child custody orders also affect an unmarried father’s child support obligation because child support is calculated using the gross income of both parents and the percentage of time that parents spend with a child. Usually, however, a court will not consider the time an unmarried father spends with his child unless there are existing court orders regarding visitation. Without custody orders, the court will set the time-share between father and child at zero percent (0%). The effect of using a zero percent time-share will be to set child support at the maximum level.
Although the law treats unmarried parents differently than a married couple, California still provides protection for these persons parental rights.
Call us for a complimentary case evaluation if you need help comprehending, enforcing, or preserving these rights; or any other California family law issue that you or yours may be dealing with.