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There is a common misconception that custody rights innately favor the mother in most cases. However, the law regarding custody does not have a gender bias. It is simply the practical experience of having a child that often results in a mother receiving custody by default. When parents are not married, the mother will be the one who gives birth to the child, and, therefore, the mother is the likely one who will take the child home from the hospital.
Sometimes, unmarried mothers are eager to name the father of their child. Doing so helps them connect with child support and ensures that their child grows up knowing who their father is. Other times, the mother may not want to name you as the father.
Regardless of the motive why, it can create a complicated situation, especially if she doesn’t agree to regular visitation or shared custody. The good news is that even if you never married the mother of your child, you still have legal rights to see your child and have a part in their life.
Getting custody usually means proving paternity
If you never married the mother and she didn’t list you on the birth certificate, your first step toward shared custody or visitation will be establishing paternity. The easiest way to establish paternity is to have your name listed on the birth certificate.
If your name is not on the birth certificate, you may be able to convince the mother of your child to voluntarily execute a Voluntary Declaration of Paternity form. These legal documents acknowledge the father’s relationship with a child and pave a legal pathway toward custody for the dad.
However, if a mother refuses the father visitation and did not include him on the birth certificate, she may be unlikely to add him after the fact via a Voluntary Declaration of Paternity form. In that scenario, you will have to ask the courts to step in.
California family law allows for fathers to request genetic testing of their children to establish paternity. The courts will summon the mother and issue a court order to have the child tested. Once that test confirms that you are the father, you will be able to start the process of seeking shared custody.
Both parents have rights to custody and visitation
While some others seem to think that they deserve sole custody of their children simply because they gave birth, the law does not reflect that belief. California courts understand that children do best when they have positive relationships with both of their parents.
In order to facilitate this in as many situations as possible, California provides equal rights under the law for both parents, regardless of gender. Once you have established paternity, you can petition the courts for a custody hearing.
Barring serious issues, such as a history of child abuse or ongoing drug addiction, the courts are likely to grant your request for visitation, if not shared custody. The sooner you begin the process of establishing yourself as the father of your child, the sooner you can begin spending time together.
We represent clients in Orange County and Southern California in all types of family law matters involving divorce, mediation, property division and issues involving children. Call our Fullerton office at 714-680-9777 or use our online contact form to schedule a free consultation. We ensure a 24-hour response to all inquiries.
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