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Questions regarding paternity can sometimes be raised during a divorce or separation. While child custody and support are two critical issues that must be resolved when a couple chooses to part ways, you might wonder what your parental obligations are if you're not the biological father. Or, if you are the child's father — but were not legally married to the mother — you may want to know whether you have any parental rights and responsibilities.
California law recognizes three different legal categories for fathers: alleged, presumed, and biological. Depending upon the specific details of your situation, your parental rights, responsibilities, and support obligations will be affected accordingly. Significantly, parentage is not questioned if the father was married to the child's mother at the time of birth. However, paternity must first be established for the court to issue an order for support or custody in cases in which the parents were unmarried.
In California, a "presumed parent" has all the legal rights and responsibilities that come with raising a child — whether they are the child's biological father or not. A father can legally qualify as a presumed parent if:
A presumed father will generally have demonstrated that he is committed to his parental responsibilities and welcomed the child into his home shortly after birth. In a divorce or separation, a presumed father will typically have custody and visitation rights — as well as child support obligations. The child also has the right to inherit from their presumed father and receive health insurance or other benefits available to them through the parent.
If the parties were not married when the child was born, or parentage is not presumed by estoppel, paternity can be established by genetic testing or by signing a Declaration of Paternity. Additionally, even when the parents are married, paternity can still be challenged by the husband within two years of the child's birth — it can also be contested by a man who alleges that he is the child's biological father. In these cases, the court may order genetic testing.
The same parentage presumption also applies to couples who entered into a registered domestic partnership after January 2005.
In contrast with a presumed father who holds himself out to be the child's parent, an "alleged father" is the man the mother has identified as the child's biological father. Typically, a father who is "alleged" was not married to the mother at the time of the child's conception or birth, and did not live with the mother or the child. Even if they are the child's biological father, an unwed father doesn't automatically have the same rights and obligations as a presumed parent.
Whether a father was married to the child's mother or not, both parents still have an obligation to provide financial support for the child. But for a court to issue an order that child support be paid, paternity will first have to be legally established. If the father does not acknowledge paternity voluntarily, the child's mother can file an action with the court. A paternity case can also be commenced by the man who believes he is the child's father.
Establishing paternity can offer a number of benefits to both the father and the child. For instance, the legal father may be entitled to custody and visitation rights and be given the legal authority to make decisions for the child. Importantly, when paternity is established, the child will also have an opportunity to develop a meaningful relationship with their father.
Although a biological father has a duty to financially support their child, in some cases, non-biological fathers may have more rights and responsibilities than a natural father. For example, if a non-biological father is the presumed parent and raised the child as their own, they could be obligated to pay child support in the event of divorce — despite the results of a DNA test. A court may also grant custody and visitation rights to a non-biological father who was the presumed parent if it is in the child's best interests.
However, in most instances, a step-father will not have the same parental obligations as a presumed father or a biological father in the event of divorce. Unless the step-father legally adopted the child or parentage by estoppel has been established, custody or visitation rights are usually not granted to a step-parent when a marriage has ended.
Paternity matters can be confusing and overwhelming. If you have concerns regarding your presumed, biological, or alleged father rights and responsibilities, it's essential to consult with a knowledgeable family law attorney. Providing high-quality representation and compassionate counsel, The Law Offices of Rick D. Banks can assist you with establishing paternity and ensure your legal rights are protected throughout the process.
The Law Offices of Rick D. Banks has been helping clients throughout Fresno and the surrounding area with their divorce and family law matters for more than 20 years. To schedule a no obligation consultation, call (559) 222-4891.