As of this writing, it is estimated that up to 50% of first marriages in the United States will end in divorce. The chances of divorce are even higher for second and subsequent marriages. With the divorce rates so high, it's understandable why so many American children are born outside of marriage.
When a man and a woman are married and they have a child, the law automatically presumes that the husband is the child's biological and "legal father." So, in the event of a divorce, the father would have equal rights and responsibilities towards his child; he would be equally entitled to child custody and visitation, but he would also have to financially support his child.
But what about unmarried fathers, what rights do they have? Contrary to popular belief, an unwed father has zero rights and responsibilities towards his child unless paternity is established. To establish paternitymeans it must be established that he is a child's legal and biological father, and there are two ways to do this:
- Sign a voluntary Declaration of Paternity, or
- Obtain a court order that says a man is the legal father.
The voluntary Declaration of Paternity form is usually signed by both parents shortly after the child's birth at the hospital. This form must be signed by the mother and the father and it must be signed voluntarily – the presumed father cannot be forced to sign it, nor should he sign it if he isn't 100% sure that he is the child's father.
When a Declaration of Paternity is signed correctly, it has the same legal effect as an order issued by the court, but the parents do not go to court. Once this form is signed by the mother and father, it must be filed with the California Department of Child Support Services Paternity Opportunity Program so the form can be effective.
Fathers Must Establish Paternity to Have Rights
Until paternity is established by one of the two above methods, an unwed father has no rights towards his child, but nor does he have any legal obligations. He has no rights to child custody, and he is not responsible for paying
For the child, the benefits of establishing paternity, include:
- Financial support from the mother and father
- The father's name can be on the birth certificate
- Access to the father's medical history
- The right to health insurance coverage from the father
- The right to inherit from the father under intestate succession laws
- The right to receive Social Security benefits under the father's work record
- The right to receive veteran's benefits, if applicable
The choice to acknowledge paternity is not a minor one. For mothers and fathers, once paternity is established, it means the court can make orders for child custody, visitation, health insurance, pregnancy and birth-related expenses, and more. Without establishing paternity, the court does not have the power to make orders regarding any of these matters.
If a mother wants child support from the child's father and he refuses to pay it, the court will not order it until after paternity has been established. On the flipside, if a father wants to see his child but the mother refuses to let him, the court won't make an order about child custody or visitation until paternity is established.
If paternity is not established through a Declaration of Paternity, the court will order genetic testing in the form of a DNA test, which is where a small cotton swab resembling a Q-tip is gently rubbed on the inside of the cheek to collect DNA-rich saliva.
Looking for a San Diego child custody attorney to assist you in a paternity case? Contact Claery & Green, LLP for a free case evaluation.