In modern times, many couples have children when they are not married. Issues regarding child custody, visitation, and child support can arise when these couples break up.
In a perfect world, the mother and father are friendly in such a situation and do what is best for the child or children. However, it is much safer, and highly recommended, that you obtain court orders regarding custody, visitation, and support issues, so that the mother and father are aware of their respective rights and obligations, and so that there is no ambiguity regarding the same.
This article will discuss the issue of children born out of wedlock to both the mother and father to give you a general understanding of the law in California regarding children born out of wedlock.
The mother’s perspective
The mother of a child born out of wedlock has the unique advantage that she normally does not have to prove that the child is hers. If hospital records indicate that a woman has given birth to a child, and the birth certificate issued at the birth of a child indicates that the woman gave birth to the child, then there is generally no problem with the mother showing that she is the paternal mother.
The mother of a child born out of wedlock will automatically be entitled to full custody of the child in the absence of a court order to the contrary.
She can give visits to the father if she chooses, or she can deny visits to the absent father by court order.
All minor children in California are entitled to receive child support in accordance with a legal guideline. (The topic of child support will be covered in a separate, upcoming article.) If the mother of a child born out of wedlock wants to get child support from the father, she will have to file and serve the father with a Petition to Establish Paternity and an Order to Show Cause for Child Support in the appropriate court. .
If the mother receives welfare or helps families with dependent children, the district attorney of the county in which the mother resides will normally assist in this process so that the county obtains funds for the support the county provides to the mother. .
If a father voluntarily agrees to paternity, the court will decide each party’s rights to custody, visitation, and child support based on the facts of the case. If the father denies being the father, he can request a DNA test to determine if he is the father. Once this process is complete, the Court will determine the rights of each party.
If a mother is not sure who the real father of a child is, she will have to file a Petition to Establish Paternity for each potential father.
Normally, the court will grant the parent visitation or custody rights to the child, unless it can be shown that it is not in the child’s best interest for the parent to have such rights.
The father’s perspective
The father of a child born out of wedlock has no rights to Custody, Visitation or Child Support unless he obtains a court order to do so.
If a father wants custody, visitation, or support rights for a child born out of wedlock, he must file a Petition to Establish Paternity and an Order to Show Cause for Custody, Visitation, and/or Support.
The mother of the child may or may not agree that the father is the true father of the child. Either party may request that a DNA test be performed to prove whether or not the father is the paternal father of a child.
Once the Court determines paternity, the Court will look at many factors regarding Custody, Visitation and Support rights.
Normally, the court will grant the parent visitation or custody rights to the child, unless it can be shown that it is not in the child’s best interest for the parent to have such rights.
The perspective of the mother and father as a whole
The Court will always try to determine what is best for the children when determining who will have Custody and Visitation rights for a child or children. This can be a lengthy and expensive process if litigated. It is recommended that the Mother and Father informally try to work out a Custody and Visitation plan for a child or children, and then obtain a Court Order reflecting the agreement of the mother and father.
If you cannot resolve it informally, the Court will decide the matter for you.
The Court will determine support for the child(ren) using a legal formula that is based on the income of both parties, the percentage of time each person has with the child(ren), and other factors.
It is always recommended to hire an attorney in these types of cases. Only a fool has himself as a client.
You can refer to our family law website at http://www.divorce-legal.net for more general information on family law.
© 2007