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Parental Rights

When a child’s parents are married, both have equal parental rights, unless a court order states otherwise. Parental rights include the right to make important decisions for the child, determine medical care, maintain physical custody of the child, provide religious instruction, and enroll the child in school.

  • In a divorce situation, a father’s parental rights might be jeopardized if he leaves the family home without establishing a court order for custody, since leaving gives “de facto custody” to the child’s mother if the children remain with her
  • The state will determine paternal rights based upon the child’s best interests, which may not necessarily be the best interests of either the father or mother. If the child is already well established with the mother, the court is unlikely to uproot the child to give custody to the father unless the mother is deemed unfit, or if she voluntarily relinquishes custody.

Either parent may begin a case to establish parentage. A parentage case also allows the parents to ask for orders that cover custody, visitation, and child support. There are two main ways to establish parentage when the child’s parents are not married:

  • Signing a voluntary Declaration of Paternity
  • Receiving a court order (you may do this on your own or with the help of a Local Child Support Agency)

You do NOT need a parentage case if:

  • You and the other parent are unmarried and have a signed voluntary Declaration of Paternity.
  • You are married to the other parent. If domestic partnership was achieved after January 1, 2005, you may not be required to file for parentage, but you should speak with a lawyer in this instance.
  • The local child support agency already filed a parentage petition and child support case in court
  • You and the other parent are involved in a domestic violence restraining order case AND you both agree to both the parentage of your child and the court entering a judgment about parentage

Unmarried Fathers: Fathers who were not married to the child’s mother may be able to establish parental rights. Some states have strict deadlines during which a case must be filed and may also require genetic tests. A man seeking to establish paternity may also be required to file a document acknowledging paternity, legally stating he is claiming to be the child’s father. In situations where there is no presumed father, the acknowledgement of paternity is typically enough to legally establish paternity if both the father and mother agree to this acknowledgement.

  • California allows challenges to the presumed father standard within the child’s first two years.
  • The father may be required to pay child support, whether or not he has custody.

We can help you file your documents. Once paternity has been established, custody, visitation rights, and child support can be addressed.