You became a father. Your child was born out of wedlock. What happens now?
This article will discuss a child born out of wedlock and a father's rights in such a situation. A child born out of wedlock can be a joyous occasion as well as a stressful one. Depending on the nature and extent of the relationship between the mother and father, a child born out of wedlock followed by the relationship breakup can lead to conflict.
Fathers naturally concern themselves regarding their rights on both child custody and child support when their child is born out of wedlock. In our experience, the relationship's nature between the father and mother can impact the conflict level after the child is born.
This article only applies to California family law matters. It does not apply to any other state. We are experienced family law attorneys who handle family law matters in the seven counties of Southern California.
The fact a child is born out of wedlock is irrelevant to the father's legal rights.
Child births out of wedlock are common.
California law does not permit the Family Court to base custody decisions on gender. Therefore, a father need not worry the mother has greater rights because she is the mother. Fathers sometimes perceive a bias exists. That perception may be true with certain family law judges in the state but we have found it to be the rare exception.
The fact the father's child is born out of wedlock also does not impact a family law judge's decision. Family law judges are required to base child custody decisions on a child's best interest. Being born out of wedlock is not a best interest factor.
To learn more about child custody, check out our guide on California child custody laws.
Father's rights with a child born out of wedlock.
A father's rights with a child born out of wedlock is therefore the same as a father's rights with a child born within a marriage. The court evaluates the child's best interest including health, education, safety and general welfare. A court is required to take the child's best interest into consideration in any child custody determination.
Child born out of wedlock when the father does not have a relationship with the mother.
If a child is born out of wedlock and the father does not have a relationship with the mother, a father should be careful not to fall into certain traps.
We often see the mother in such a situation become unreasonably possessive over the child and refuse to let the father bond with the child. This is most common in a "one night stand" situation or very short relationships. The reason this exists varies depending on the situation. In our experience, they include:
- Mother who does not trust the father with the child,
- Mother who is angry at the father for what she perceives to be his improper behavior before the child was born, and/or
- Mother who is simply immature.
Sometimes young mothers also fall under their own parents' control, would then become a second layer to interfere with the father's rights.
A newborn must also bond with the father
Too many fathers allow the above to either interfere or eliminate their parenting time and bonding with the child. A newborn must bond with both parents to develop a comfort level with the parents. If the father allows himself to have very limited contact or no contact with a newborn, he harms that necessary bonding. This can delay a child's comfort level with the father as the child grows older.
Commence a parentage action
The father must be diligent and vigilant in exercising his parenting time but creating conflict and hostility with the mother or the mother's family is not the way to go. If the mother simply refuses to allow the father reasonable parenting time, the father should hire a family law attorney immediately and commence the parentage action. A parentage action is a family law action for unmarried parents on child custody and child support.
A father in a parentage action can immediately seek temporary custody and visitation orders for a newborn or a child of any age. There's no reason to wait until the child reaches a certain number of months or give the mother weeks or months to become comfortable with the situation. Every week that passes where the father does not see his child harms the bond that should be built from the outset.
Child born out of wedlock after a courtship.
A child born out of wedlock after a courtship once again does not have an impact on a father's rights but may change the father's choices.
Older children who are born out of wedlock
In a courtship that was long enough to build a bond and trust between the father and mother, the child custody issues should go smoother. That is because the child or children are usually older. Even with a newborn child, the father and mother hopefully built a mutual respect or trust. This would ideally, even after a breakup, allow the parents to come to reasonable agreements on child custody and visitation.
Newborn children born out of wedlock during a lengthy courtship
With a newborn child, the father should once again be vigilant in exercising time with the child. If the mother is unreasonable and interferes, the father should consider immediate court action. If a child is older and built a relationship with both parents before the breakup, the first question we ask is what has been the status quo to which the child became accustomed? For example, if both the father and mother work standard 40 hour weeks, use childcare to some extent and are both actively involved in the child's upbringing, that child is likely accustomed to spending equal time with both parents. In such a situation, the parents should consider whether an equal parenting time makes sense now that they will separate.
The situation is different if one parent is historically up to the present date the primary parent and therefore the primary attachment figure to the child.
Coming to an agreement or proceeding to court
What we like to see for fathers with a child born out of wedlock during or after a lengthy relationship is to come to an agreement quickly on legal custody, physical custody and parenting time. This agreement is memorialized in a stipulation and order if a case is pending or a written agreement if a case is not yet pending. We discourage a written agreement to control these issues without it becoming a court order. Our family law attorneys believe parents are more likely to comply with an agreement if the agreement actually becomes a court order. In addition, a court order is far more protective on these issues than simply a contract as both law enforcement and the courts can enforce a court order.
If the parents are unable to come to an agreement within a short and reasonable time, the father should consider immediately commencing a parentage action and seek immediate child custody and visitation orders. Once again, a father must be diligent and vigilant and not allow months to pass while the mother limits his time with the child. Courts will place some emphasis on the status quo and to what schedule the child became accustomed.
Family Code section 3046
Family Code section 3046 states:
"If a party is absent or relocates from the family residence, the court shall not consider the absence or relocation as a factor in determining custody or visitation in either of the following circumstances:
(1) The absence or relocation is of short duration and the court finds that, during the period of absence or relocation, the party has demonstrated an interest in maintaining custody or visitation, the party maintains, or makes reasonable efforts to maintain, regular contact with the child, and the party's behavior demonstrates no intent to abandon the child.
(2) The party is absent or relocates because of an act or acts of actual or threatened domestic or family violence by the other party.
(b) The court may consider attempts by one party to interfere with the other party's regular contact with the child in determining if the party has satisfied the requirements of subdivision (a).
(c) This section does not apply to either of the following:
(1) A party against whom a protective or restraining order has been issued excluding the party from the dwelling of the other party or the child, or otherwise enjoining the party from assault or harassment against the other party or the child, including, but not limited to, orders issued under Part 4 (commencing with Section 6300) of Division 10, orders preventing civil harassment or workplace violence issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, and criminal protective orders issued pursuant to Section 136.2 of the Penal Code.
(2) A party who abandons a child as provided in Section 7822."
A father should be vigilant despite what Family Code section 3046 states
A father should not assume the court will disregard his limited parenting time before he goes to court. It is best to be safe and proceed immediately if the parents cannot come to a reasonable agreement.
What about child support and a father's rights with a child born out of wedlock?
We encourage you to read our informative guide on California child support laws. It comprehensively covers child support and its establishment, modification and termination.
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We hope you enjoyed this article on a father's rights with a child born out of wedlock. If you are a father who has a case or may need to commence the case in the Southern California courts we handle, please contact us for an affordable strategy session.
This article is not legal advice and is not intended to apply to your specific situation. Please have a private consultation with an attorney if you have questions about your specific case.