“Biology Does Not Determine Parentage”
There is a misconception that a father’s last name on a birth certificate is all it takes to make him the legal parent of a child. Not so. In California, there is a distinction between “biological parent” and “legal parent.” A (previously) married and divorced man’s parental rights are automatically bestowed by virtue of marriage. An unmarried man can be the biological father, and even the “presumed” father, but this does not automatically give him legal rights to make decisions or to share physical custody. His rights must be requested and granted by the court.
An unmarried father must file a “Request to Establish Paternal Relationship” (Form FL-200), which declares his paternity, establishes jurisdiction, and allows for him to request the type of custody and visitation arrangement he is seeking. “Legal custody” refers to the rights and responsibilities of a parent to make decisions for the child’s health, education and welfare. Legal custody rights will be the cornerstone for this father to be able to participate in the decisions regarding where their child will live and attend school. Without legal custody rights, the father will have no say in these decisions.
“Physical custody” is the percentage of time the child will spend with each parent. The amount of time a parent enjoys is not synonymous with the amount of legal custody; in other words, a parent can have joint legal custody but not joint physical custody. The amount of physical custody will depend upon a number of factors based upon what is in the child’s best interests (see Family Code section 3011, 3040).
Family Code section 3020(a) declares that “…it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children…”. Section 3020(b) states that: “…it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child…”
This public policy will be the foundation upon which the court will make any determinations for this father. Service of the Petition is accompanied by the Summons (FL-210) which contains Automatic Temporary Restraining Orders (“ATROS”) that automatically attach to this request: “Starting immediately, you and every other party are restrained from removing from the state, or applying for a passport for, the minor child or children for whom this action seeks to establish a parent-child relationship or a custody order without the prior written consent of every other party or an order of the court.” Father is held to the ATROS upon filing; mother is held to the ATROS when served.
Once father files his request to establish paternity, the mother will have the opportunity to either stipulate to his paternity or challenge this request. Barring any challenge, the court has the power to grant this request to establish paternity.
The next steps will be to determine legal and physical custody, and if this child will be moving to another state or not. There are a number of factors the court will consider and has numerous procedures at its disposal to aid in this determination, but the basic concept is the court will do its best to determine what is in the child’s best interest based upon the evidence presented.
By going through the proper legal channels of establishing his legal rights, there will be orders in place ensuring that this child’s father is now legally the other parent. This child’s father will be able to be involved in this child’s life, will be involved in all major decisions, will have a set custody and/or visitation schedule, and will be able to maintain his relationship as this child’s father.
For any father who was not married to their child’s mother, establishing legal rights through the court system is imperative to ensure their recognition as the legal parent. You deserve it, and so does your child.