These days, it’s not uncommon for children to be born out of wedlock. It became so common that questions began to arise across the country about a father’s rights to his child when he is not married to the child’s mother. In this article, we discuss the parental rights of unwed fathers and what needs to happen for fathers to exercise their rights.
When a child is born to married parents, the law automatically assumes the woman’s husband is the child’s biological and legal father. But if the mother and father are not married, or if the mother is legally married to another man, not the biological father, then paternity needs to be established before orders can be made for child support and custody.
Why Establish Paternity?
To “establish paternity” means to determine who a child’s legal father is. As we mentioned earlier, when a couple is married and a baby is born, paternity is automatic. But when the parents are not married, the unwed father has zero rights and responsibilities toward his child. This means the mother cannot ask for child support and the father cannot ask for custody or visitation until paternity is established. Paternity is generally established in one of two ways in San Diego and throughout California: 1) the unwed parents voluntarily sign a Declaration of Paternity form shortly after the child’s birth at the hospital or 2) through a DNA test and then a court order.
If there is any doubt about who the father is, the mother and presumed father should not sign the Declaration of Paternity form at the hospital. Instead, they should go to court and ask for genetic testing (a DNA test). Also, if a presumed father refuses to admit that he is the father of a child, the mother can go to court, and the court can order that the alleged father and the child submit to DNA testing.
Once paternity has been established, the biological and now legal father will have the same rights and responsibilities as a married father. Not only will he be responsible for child support, but he can seek custody or visitation orders.