- How to obtain Custody and Visitation Rights for Unmarried Dads
Establishing parentage rights for Moms is a lot easier than establishing one for unmarried Dads. Moms can establish this by simply showing proof of her having given birth to the child. Family Code §7610.
Establishing parentage rights, including custody and visitation rights, becomes more problematic with unmarried Dads because proving yourself as the biological father does not automatically make you the natural father of the child. Under the family code, there are competing presumptions of paternity which allows the non biological father to be deemed the natural father of the child.
A typical situation is when boyfriend gets girlfriend pregnant. Girlfriend for some reason decides to exclude boyfriend from baby's life so she breaks up with boyfriend, does not give the boyfriend any information about her delivery, and does not state the boyfriend as the father in the birth certificate or decides to name someone else as the father. Girlfriend does this because her parents disapprove of the ex boyfriend.
One way a presumption of Paternity is created is by executing a voluntary declaration of paternity. A Voluntary declarations executed before 1997 give rise to a conclusive presumption of paternity and can be overcome only by blood or genetic tests ordered on noticed motion by the mother or presumed father must be made within three years of the date of execution of the voluntary declaration Family.Code. § 7576; Kevin Q. v. Lauren W. (2009) 175 CA4th 1119, 1133, 95 CR3d 477, 485 If the voluntary declaration of paternity is executed after 1996, it is not characterized as a conclusive presumption. Instead, it “shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction” and trumps §7611 presumptions discussed below. A post 1996 voluntary declaration of paternity “shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support.” Family .Code §§ 7573, 7644; Kevin Q. v. Lauren W., supra, 175 CA4th at 1132, 95 CR3d at 485; In re J.L. (2008) 159 CA4th 1010, 1019, 72 CR3d 27, 33.
Another way of establishing presumed father status is if you fall under any of the categories listed (a) to (f) under family code §7611:
- (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.
- (b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:
- If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.
- If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.
- (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:
- With his consent, he is named as the child's father on the child's birth certificate.
- He is obligated to support the child under a written voluntary promise or by court order.
- (d) He receives the child into his home and openly holds out the child as his natural child.
- (e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative.
- (f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied. An alleged biological father who does not meet any of the § 7611 conditions for presumed father status has no constitutionally-protected “liberty interest” in establishing a parentage relationship with a child as against the rights of a presumptive father who has an extant parentage relationship with the child. Dawn D. v. Super.Ct. (Jerry K.) (1998) 17 C4th 932, 940–942, 72 CR2d 871, 876–877
The facts get even more complicated if the girlfriend, whom boyfriend gets pregnant is married to another man because the law provides a conclusive presumption of paternity to the husband of the girlfriend. Under Family Code §7540, the child of a wife cohabiting at time of conception with her husband, who is not impotent or sterile, is “conclusively” presumed to be a child of the marriage. This conclusive presumption may be challenged by showing that the husband was sterile. It may also be challenged by filing a motion for blood or genetic testing under Family Code §7541 but this has to be done within 2 years of the childs birth. In addition, only persons with standing can bring this motion which is limited to the husband, child, mother and a presumed father as listed in Family Code §7611 and 7612.
Even absent a recognized rebuttal, the court has discretion as a matter of due process not to apply § 7540 conclusive presumption of paternity when it would not further the statute's underlying policies of preserving the integrity and stability of an extant marital family, protecting children from the stigma of “illegitimacy,” and promoting individual rather than State responsibility for child support ... as where the ostensible § 7540 presumptive father never developed a parental relationship with the child and the only established parent-child relationship is with a third person. Brian C. v. Ginger K. (2000) 77 CA4th 1198, 1200–1201, 92 CR2d 294, 296; In re Kiana A. (2001) 93 CA4th 1109, 1115, 113 CR2d 669, 675.
Procedurally, the ex boyfriend should file a Petition for Parentage as soon as the child is born. While the case is pending, the ex boyfriend may seek temporary visitation order although this may be on a limited or even monitored basis. If successful in proving parentage, the ex boyfriend may be granted custody and visitation rights. However, the ex boyfriend would also have the obligation of paying child support based on California guidelines.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney-client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive former CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail firstname.lastname@example.org or visit our website at Kenreyeslaw.com