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Establishing parentage means obtaining a court order or signing an official Declaration of Paternity that says who the legal parents of a child are. For example, if the parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until parentage is established. So even if a father can prove he is the biological father of a child, if he was never married to the mother, he does not legally have any rights or responsibilities for the child. For that, parentage must be established legally.
Establishing parentage is necessary before custody, visitation, or child support will be ordered by a court. You can ask the judge for child support or custody and visitation orders as part of a case that establishes the child’s parentage.
• If a person does not admit that he or she is the parent, the court may order the alleged father, mother, and child to submit to genetic testing.
Once a person is established as the father or mother of a child, he or she will have all the rights and responsibilities of a parent:
• He or she will be able to request custody and visitation orders from the court so that he or she can legally visit with his or her child.
• He or she also will be responsible for paying child support and will have to pay half of the uninsured health-care costs for the children and half of the child-care costs that result from the custodial parent getting or having a job or going to school.
If a person is established as a legal parent of a child, that person MUST financially support the child. It is a crime for a legal parent to fail to support his or her child. A legal parent also has the right to get custody or visitation rights related to the child.
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Establishing parentage is very important for a child. First, the child gets the emotional benefit of knowing who both of his or her parents are. And, legally, it entitles the child to the same rights and privileges as those of a child whose parents are married.
These legal rights and privileges are:
Financial support from both parents;
• Legal documentation identifying both parents;
• Having the names of both parents on the child’s birth certificate;
• Access to family medical records and history;
• Health and life insurance coverage from either parent;
• The right to inherit from either parent; and
• The right to receive social security and veteran’s benefits, if available.
Once parentage is established, the court can make orders for child support, health insurance, child custody, visitation, name change, and reimbursement of pregnancy and birth expenses. Without establishing parentage, the court cannot make orders regarding these issues, so if 1 parent needs child support and the other will not pay voluntarily, the court will not be able to order child support until parentage is established.
And even if 1 of the child’s biological parents does not have any money or a job to support the child or does not want to be involved in the child’s life, it is still a good idea to establish parentage. The benefits to a child of establishing parentage go far beyond the financial issues as the list above shows and include things like allowing the child to get child support or health insurance later on, when the other parent gets a job or is in a better financial situation.
Presumed Parents
The law will presume a person is a child’s other parent under the following circumstances (unless proved otherwise to a court). For example, John will be presumed to be the child’s other parent if:
• He was married to the child’s mother when the child was conceived or born;
• He attempted to marry the mother (even if the marriage was not valid) and the child was conceived or born during the “marriage”;
• He married the mother after the birth and agreed either to have his name on the birth certificate or to support the child; or
• He welcomed the child into his home and openly acted as if the child was his own. This concept is called “parentage by estoppel” and means that the court can find that a man is the legal father, even if he is not the biological father, if he has always treated the child as his own.
The presumptions that apply to married couples also apply to those who entered into a registered domestic partnership after January 2005.
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Parents that separate will need to have a plan for deciding how their children will be cared for and where they will live or spend time. Sometimes parents can agree to a parenting plan, and other times they need the help of the court to come up with a plan that is in the best interest of their children. This section will explain the law about custody and visitation (also called "parenting time") of children, and how to ask for a court order, respond to a request, change an existing order, or enforce an order.
In California, either parent can have custody of the children, or the parents can share custody. The judge makes the final decision about custody and visitation but usually will approve the arrangement (the parenting plan) that both parents agree on. If the parents cannot agree, the judge will make a decision at a court hearing. The judge will usually not make a decision about custody and visitation until after the parents have met with a mediator from Family Court Services.
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There are two kinds of child custody:
• Legal custody, which means who makes important decisions for your children (like health care, education, and welfare), and
• Physical custody, which means who your children live with.
Legal custody can be:
• Joint, where both parents share the right and responsibility to make the important decisions about the health, education, and welfare of the children.
OR
• Sole, where only 1 parent has the right and responsibility to make the important decisions about the health, education, and welfare of the children.
Parents with legal custody make decisions or choices about their children’s:
• School or child care
• Religious activities or institutions
• Psychiatric, psychological, or other mental health counseling or therapy needs
• Doctor, dentist, orthodontist, or other health professional (except in emergency situations)
• Sports, summer camp, vacation, or extracurricular activities
• Travel
• Residence (where the children will live)
Parents who share legal custody both have the right to make decisions about these aspects of their children’s lives, but they do not have to agree on every decision. Either parent can make a decision alone. But to avoid having problems and ending up back in court, both parents should communicate with each other and cooperate in making decisions together.
Physical custody can be:
• Joint, which means that the children live with both parents.
• Sole or primary, which means the children live with 1 parent most of the time and usually visit the other parent.
Joint physical custody does not mean that the children must spend exactly half the time with each parent. Usually the children spend a little more time with 1 parent than the other because it is too hard to split the time exactly in half. When 1 parent has the children more than half of the time, then that parent is sometimes called the “primary custodial parent.”
Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means that both parents share the responsibility for making important decisions in the children’s lives, but the children live with 1 parent most of the time. The parent who does not have physical custody usually has visitation with the children.
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Each parent is equally responsible for providing for the financial needs of his or her child. But the court cannot enforce this obligation until it makes an order for support. When parents separate, a parent must ask the court to make an order establishing parentage (paternity) and also ask the court to make an order for child support.
Child support payments are usually made until children turn 18 (or 19 if they are still in high school full time, living at home, and cannot support themselves).
Either parent can ask the judge to make a child support order as part of one of these types of cases:
• Divorce, legal separation, or annulment (for parents who are married or in a registered domestic partnership);
• A Petition to Establish Parental Relationship (for unmarried parents);
• A domestic violence restraining order (for married or unmarried parents);
OR
• A Petition for Custody and Support of Minor Children (for parents who have signed a voluntary Declaration of Paternity OR are married, or registered domestic partners, and do not want to get legally separated or divorced )
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When a couple legally separates or divorces, the court may order 1 spouse or domestic partner to pay the other a certain amount of support money each month. This is called “spousal support” for married couples and “partner support” in domestic partnerships. It is sometimes also called “alimony.
In order for spousal or partner support to be legally established and officially start, there must be a court case.
A spouse or domestic partner can ask the judge to make a spousal or partner support order as part of 1 of these types of cases:
• Divorce, legal separation, or annulment; or
• A domestic violence restraining order.
You can ask for spousal or partner support to be paid while your case is going on. This is called a “temporary spousal support order” or a “temporary partner support order.” Support can also be ordered once the divorce or legal separation becomes final, as part of the final divorce or separation judgment. When it is ordered once the case becomes final, it is called “permanent (or long-term) spousal or partner support.”
