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If you are a father, or a presumed father (one that is assumed to be a child’s father, but it has yet to be legally established), your rights to your child at this point in time depend on whether you were ever married to the child’s mother, and if not, whether you voluntarily acknowledged paternity.
If you were married to your child’s mother when he or she was born, you were automatically assumed to be the child’s father and therefore you have all of the same rights and responsibilities to your child as their mother.
This means that if you are headed for divorce, you have equal rights when it comes to child custody and visitation, assuming substance abuse and domestic violence are not issues. If there is a child custody dispute, you can petition the court for custody.
The children’s mother is not automatically preferred because she is their mother. Instead, the court renders a decision based on the best interests of the children. Since each family is different, child custody disputes are handled on a case-by-case basis.
If for example, the children’s mother is abusive, has a substance abuse problem, or is neglectful, the court may be more inclined to award you custody of the children.
On the other hand, if you’re both good parents who can provide stable, loving environments for your children, the court will be likely be in favor of a joint custody arrangement, one where the children maintain frequent and ongoing contact with you and their mother.
What if was never married to my child’s mother?
If you were never married to your child’s mother, this changes the dynamics of the whole situation. If you and the child’s mother signed a voluntary Declaration of Paternity (this is usually at the hospital shortly after a child’s birth) and it was filed with the California department of Child Support Services, then you are your child’s legal father.
The Declaration of Paternity form is very powerful. It has to be signed by both parents and neither parent can be forced to sign it. If you signed this form at the hospital after your child’s birth, then your name is on your child’s birth certificate.
You are your child’s legal father, and you have all the same rights and responsibilities to your child as a married father.
If you did not sign the Declaration of Paternity because you didn’t know that you had a child, or because you question whether you are the child’s father, or the mother refused to sign the form, then you’ll have to go to court to establish paternity, even if you are fairly confident that you are the biological father.
What it Means to Establish Paternity
If you were not married to your child’s mother at the time of birth, and if you did not sign the voluntary Declaration of Paternity, you are not your child’s legal father. This means that as of right now, you have no rights to child custody or visitation, nor are you obligated to pay child support. You’ll have to establish paternity with the court.
Establishing “paternity” means to establish who a child’s legal father is. Generally, whenever there is a question about paternity, or when a parent refuses to acknowledge paternity, a DNA test can be taken to answer the question once and for all.
If there is a question over paternity, a test can be requested by the mother or the father, or by the local child support agency. However, once paternity is established, it can be nearly impossible to undo.
Additionally, if you signed a Declaration of Paternity in the hospital and later found out that the child may not be yours, you can challenge the Declaration of Paternity in court, but you must do it within two years of the child’s birth.
You can challenge a Declaration of Paternity that you signed by having a DNA test prove that you are not the child’s biological father, or by proving to the court that the only reason you signed the form is because you were forced to do it.
Establishing Your Parental Rights
If you are not named on your child’s birth certificate and you wish to establish your parental rights, you may need to go to court and ask for a DNA test. It’s a simple, painless test where a cotton swab, resembling a Q-tip is rubbed in the inside of your cheek to collect DNA-rich saliva.
The child in question will undergo the same test and the DNA samples will be compared in a state-approved laboratory. If the test comes back positive, revealing that you are in fact the child’s father, you will officially become your child’s “legal father.” Meaning, you will be obligated to pay child support, but you will also have equal rights to child custody.
Once paternity is established, your child is entitled to:
- Financial support from you and the mother
- Have your name on their birth certificate
- Have access to your medical history and records
- An inheritance from both parents
- Health insurance from both parents
- Receive Social Security and veteran’s benefits under your name
As a general rule, if a father is being told that he is the father of a child, he has every right to request a DNA test if he is not 100% certain that he is the child’s father. Even if you are married to the child’s mother and you are concerned that she had an affair, or that someone else is the father, you still have the right to request genetic testing if you are not sure.
For experienced legal representation in your paternity case, contact the Los Angeles family law attorneys at Claery & Hammond, LLPfor a free case evaluation!