Frank J. Prainito

Seeking Child Custody in California When You Are Not Married

Posted on: March 17th, 2017 by admin

Generally speaking, California law gives a legal presumption that a husband and wife are the parents of a child born into that marriage. California Family Code Section 7540 reads in part as:

“Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”

When a child is born to unwed parents, however, the child does not have a legal father until parentage, sometimes called paternity, is legally established. This effectively means the unwed mother’s custody rights are a given and unwed fathers have neither rights nor responsibilities to their children until their parentage is established.

Parentage can be established either by:

  • Signing a Voluntary Declaration of Parentage (VDP), or
  • A court order.

The VDP is a legal form which establishes paternity by signed acknowledgment of both parents. When signed at the hospital, the father’s name will go on the child’s birth certificate and the filing of the declaration will be automatic. When signed at a later date, the parents can acquire and sign the declaration at their local superior court, child support department, or welfare agency. The declaration can also be obtained through these agencies and signed in front of a Notary Public. Once signed the declaration must be filed with the Department of Child Support Services.  

The voluntary signing of the VDP is the easier path to establishing parentage and carries with it the full force and effect that a court order does. With a properly signed and filed VDP either parent may then seek a custody determination beginning with the filing of a Petition for Custody and Support of Minor Children.

When either parent, however, will not sign the VDP, the case can be brought before the court by either the mother, the father, the child, or for the child through a representative. This process is begun through filing a Petition to Establish a Parental Relationship. If contested, the court may order genetic testing to be performed. The issues of custody, visitation, and support are usually addressed during these proceedings once paternity is legally established.

Child custody and support concerns are some of the most complicated legal matters. A skilled family law attorney can provide the assistance needed to navigate through this complicated system. To speak with one of our experienced family law attorneys contact the offices of Hoover Krepelka at (408) 389-7099 for a free consultation regarding your specific circumstances.

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