In modern times many couples have children when they are not married. Problems can arise with respect to Child Custody, Visitation, and Child Support when these couples break off the relationship.
In a perfect world the mother and the father are amicable in such a situation, and do what is in the child or children’s best interest. However, it is much safer, and highly recommended, that you obtain Court orders with respect to custody, visitation, and support issues, so that the mother and father each know their respective rights and obligations, and so that there are no ambiguities regarding the same.
This article will discuss the issue of children who are born out of wedlock from both the mother and the father’s prospective to give you a general understanding of the law in California regarding children born out of wedlock.
The Mother’s Prospective
The mother of a child that is born out of wedlock has a unique advantage in that she does not normally have to prove that the child is hers. If hospital records indicate that a female has given birth to a child, and the birth certificate that is issued upon the birth of a child indicates that the female gave birth to the child, than there is usually no issue 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 a child absent a Court order indicating otherwise.
She may give the father visitation if she so chooses, or she can deny visitation to the father absent a Court order.
All minor children in California have a right to receive child support pursuant to a statutory guideline. (The subject of Child Support will be covered in a forthcoming separate article). If the mother of a child who is born out of wedlock wants to obtain child support from the father, she will have to file and serve a Petition to Establish Parentage on the father, and an Order to Show Cause for child support with the appropriate Court.
If the mother is on welfare or Aid to Families with Dependent Children, the District Attorney in the county in which the mother resides will ordinarily aid in this process so that the County gets reimbursed for the aid that is being provided to the mother by the County.
If a father voluntarily accepts paternity, than the Court will decide each party’s rights to custody, visitation, and child support based upon the facts in the case. If the father denies that he is the father, he may request that a DNA test be done to determine whether he is the father. Once this process is completed than the Court will determine each party’s rights.
If a mother is not sure who the real father of a child is, she will have to file a Petition to Establish Parentage on each potential father.
The Court will ordinarily allow the father visitation or custody rights to the child unless it can be shown that it is not in the best interest of the child for the father to have such rights.
The Father’s Prospective
The father of a child born out of wedlock has no rights to Custody, Visitation, or Child Support unless they obtain a Court order for the same.
If a father wants to have rights to custody, visitation, or child support for a child born out of wedlock, the will have to file a Petition to Establish Parentage, 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 done to prove whether or not the father is the paternal father of a child.
Once the Court determines paternity, the Court will than look at many factors with respect to rights to Custody, Visitation, and Support.
The Court will ordinarily allow the father visitation or custody rights to the child unless it can be shown that it is not in the best interest of the child for the father to have such rights.
The Mother and Father’s Prospective as a Whole
The Court will always try to determine what is in the children’s best interest when determining who will have Custody and Visitation rights to a child or children. This can be a long and expensive process if litigated. It is recommended that a Mother and Father try to informally work out a Custody and Visitation plan for a child or children, and then get a Court Order which reflects the agreement of the mother and father.
If you cannot informally work it out than the Court will decide the issue for you.
Support of the child or children will be determined by the Court using a statutory formula which is based on both parties income, the percentage of time each person has with the child or children, and other factors.
It is always recommended that you retain a lawyer in these types of cases. Only a fool has herself or himself for a client.
You can check out our family law website at http://www.divorce-legal.net for more general family law information.
© 2007