In cases involving parents that aren’t married, establishing paternity must be done first, before child custody and support can even be addressed.
Scenario 1: Woman is married to one man but pregnant with another man’s child
In a scenario where a woman is married to one man but pregnant with another man’s child, it is important for all parties involved to understand that biology doesn’t always determine paternity in California.
There is a presumption under California law that a child born to a married woman residing with her husband at the time of conception is a child of the marriage. The husband is the presumed legal father, even if he isn’t the biological father. The out-parent, or boyfriend who fathered the child, has a right to petition the court for a paternity test, but only within two years of the child’s birth or he waives all rights. After two years, the presumption of paternity for the husband sticks, and he is the legal father for life.
The only exception to this is if the husband discovers information subsequent to the child’s birth that he didn’t know about that causes him to believe he may not be the father. The two-year statute to contest paternity starts from the discovery of the new information.
If the marriage ends in divorce, the legal father – not the biological father – could be granted physical or legal custody of the child, awarded joint custody, or ordered to pay child support, to name a few potential outcomes.
Let’s say the boyfriend petitions the court for a paternity test and the child is determined to be his. At that point, the biological father has a right to visitation. He is also on the hook for child support.
Some parental rights advocates view California law as being antiquated when it comes to situations such as this. In 1998, the California Supreme Court upheld the notion that marriage prevails over biology in these circumstances.
A man who “fathers a child with a woman married to another man takes the risk that the child will be raised within that marriage and that he will be excluded from participation in the child’s life,” Justice Joyce L. Kennard wrote at the time. Nothing in the Constitution overrules state law favoring the stability of marriages over a biological father’s interests.
Scenario 2: Unmarried woman
An unmarried woman who has a child with a partner must establish parentage if she wishes to seek child support. Likewise, a biological father must establish parentage if he wishes to fight for custody of the child. Establishing paternity also is important to the child for reasons besides support. It gives children rights such as access to medical records and government benefits.
Establishing parentage requires a court order or a signed official Declaration of Paternity that names the legal parents.
A child born to unmarried parents does not have a legal father until parentage is established, according to the California courts. Even if a father can prove he is the child’s biological father, he has no legal rights or requirements if he was never married to the mother, until parentage is established.
Once parentage is established, a court can order custody, child support, and visitation. The California Family Code establishes preferences for awarding custody.
The court seeks to do what is in the child’s best interests, and its first preference is to award custody to parents – either jointly to both parents, or to one parent. In cases where custody is awarded to just one parent, the court doesn’t consider the sex of the parent, but takes into consideration factors such as which parent is more likely to allow the child to regularly visit the noncustodial parent.
In cases where a child has been living with someone other than his or her parents, the court may award custody to that person instead. Moving down in the order of preference, the court could grant custody to another person it deems capable and willing to care for the child.
John Griffith is a partner at Griffith, Young & Lass Family Law, offering assistance and representation that guides their clients through the legal process and helps protect them and their families.