Tag: <span>Parental Rights</span>

Grandparent Visitation

March 22, 2022February 25, 2022
by Briana White

You love being a grandparent and want to keep being a part of your grandchild’s life, once their parents get divorced.

Unfortunately, in California, grandparents do not have any automatic rights to visitation with their grandchild; however, just because this process isn’t standard procedure, doesn’t mean you can’t ever get visitation.

California courts understand that grandparents can often play a key role in a child’s early and adolescent development, providing a meaningful bond that can enrich both sides of the relationship. Because of this, the courts are willing to grant grandparent visitation, in some situations.

Here’s what you need to know about filing for grandparent visitation in California, and what the Maples Family Law team can do to help you get the arrangement that’s best for your grandchild.

What is Grandparent Visitation?

Visitation is a critical part of child custody, and refers to the allotted time a non-custodial parent gets to spend with their child.

This in-person facetime is critical. It allows parents to cultivate a relationship with their child, and to influence how they’ll be raised—regardless of their relationship status—which is why the courts take it so seriously.

Unfortunately, visitation is a parental right, not a grandparent right. Meaning that—once the child’s parents get divorced—their custodial parent has no obligation to let you be a part of their life, anymore.

Despite this, there are some situations when California courts may grant grandparent visitation, if it’s in the child’s best interest. (Even if the parent disagrees.)

Who Qualifies for Grandparent Visitation?

In California, custody decisions are made according to a child’s best interest. This legal standard makes a child’s long-term health and well-being the driving force behind every decision made. As a result, judges aren’t necessarily interested in what parents want; instead, they’re focused on what’s best for the child.

Enter: grandparent visitation.

Remember that unique, grandparent/child bond we talked about, earlier? The court recognizes that this is a good thing—a relationship that not only benefited the child leading up to this moment, but one that will serve them well in the future, too.

Because of this, there are some situations when the court will grant grandparent visitation, if it’s in the child’s best interest.

When Parents are Still Married

Generally speaking, grandparent visitation is out of the question while parents are married, though—you guessed it—there are a few exceptions.

According to California law, judges are permitted to consider grandparent visitation (while parents are still married), if:

The parents are separated;
The whereabouts of a parent have been unknown for at least a month;
One of the parents joins the grandparent’s request for visitation;
The child doesn’t live with either parent;
The child has been adopted by a stepparent; or,
One of the parents is incarcerated or involuntarily institutionalized.

However, even if the court grants visitation under one of these scenarios, there’s still a catch: once the situation no longer exists, either parent can ask for a termination, and the court will be obligated to do so.

When Parents are Not Married

Far more common are visitation requests when parents are not married. This often occurs in the wake of a divorce, but can be relevant to unmarried parents, as well. In these situations, you initiate the process by filing a grandparent visitation petition with the court.

Things then go forward much like any other child custody process, with judges analyzing facts and making decisions based on what will ultimately be in the child’s best interest. Some of the factors analyzed in this process include:

The child’s health, safety, and will-being;
Any history of domestic abuse;
Any history of alcohol or substance abuse; and,
The relationship that exists between grandparent and child.

That last point is important. For visitation to be in your grandchild’s best interest, there actually must have been a preexisting relationship between you two.

In California, courts will not grant a grandparent visitation request, simply because you want the chance to start a relationship with your grandchild; one that was never there to begin with. Here, the amount of prior contact will be a very important factor in the judge’s decision.

How to File for Grandparent Visitation

Filing a grandparent visitation request is not for the faint of heart. This process does not favor grandparents. In fact, right from the start, the court will assume the position that you’re wrong, and the child’s parents are right. From there, it’ll be your job to prove that assumption is wrong.

And we won’t lie. That’s a high bar to clear.

For those grandparents who are up for the challenge, these steps will tell you what you need to know about filing for grandparent visitation in California.

Step 1: Is There an Open Case?

And by “open case,” we mean any current case that involves your grandchild in any way—be it adoption, probate, CPS intervention, or any otherwise.

If there is, you’ll want to start by filing your petition under that case. This requirement ensures that all relevant decisions about a topic are being made at the same time.

Step 2: Fill Out Paperwork

If there isn’t already a case open, you’ll need to initiate a new case.

To do that, start by collecting the necessary forms (which will include a Request for Order, and a Child Custody and Visitation Application). These documents will ask you to explain the type of visitation you want and why you want it.

Remember: the burden of proof is working against you, here, so you’ll want to provide as much detail as possible. The evidence you provide here sets the foundation for all future arguments, and will play a critical role at your hearing.

Step 3: Make Copies

When you file your paperwork, you don’t get it back. Hence, before you file, be sure to make a copy for your own personal records.

Additional copies will be needed, in order to execute proper service. Depending on how many relevant parties there are, that could mean anywhere from 2-3 extra copies, so make sure you have enough, before filing.

Step 4: File Your Paperwork

Family law cases are heard in county court, so you’ll need to file them at the courthouse for your jurisdiction. This will include a filing fee; however, if you can’t afford to pay it, you can always request a fee waiver.

Step 5: Notification

California law requires you to notify someone when you open a case against them. For grandparent visitation, this will likely mean the child’s parents—both biological, and/or adopted.

Notification must be done through proper service, otherwise it won’t be valid. This is typically carried out by hand-delivering copies of paperwork to everyone who is a party to the case. (Which is why you don’t want to skip step 3!)

Step 6: Settlement and Hearing

Once everything has been copied, filed, and delivered, you will likely be required to attend mediation with the child’s parents, to see if things can be resolved outside of court. If they can’t, your mediator will notify the judge, and you’ll be assigned a hearing.

At the hearing, both sides will present evidence to the judge. After hearing arguments and reviewing paperwork, your judge will decide whether or not to grant grandparent visitation.

Is Grandparent Visitation the Right Answer?

Grandparent visitation is often initiated when a stepparent (or another grandparent) adopts the child. In these situations, it may be in a child’s best interest for the relationship to continue, while allowing parents to retain custody.

However, what happens when this isn’t enough?

When a child is removed from their home because of domestic violence, neglect, or abuse, the court’s first priority is to keep the family together, whenever possible. If this can’t happen, they may want to assign the child a permanent guardian, or even adopted parents.

A trusted grandparent is often the best solution for the child in these situations. Hence, if you’re able (and willing) to care for your grandchild, you may want to consider more than visitation… you may want to consider custody.

If this is something you’re interested in, an experienced, California family law attorney can help you figure out your next steps.

Do You Need Help with Grandparent Visitation in California?

Few things in life are more rewarding than becoming a grandparent, and it’s a relationship we want to help you preserve.

For more questions about grandparent visitation in California—and how that might work in your situation—we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help secure the best future for your grandchild.

Child Custody

Visitation Schedules

March 15, 2022February 25, 2022
by Briana White

Between school and work schedules, the modern family has a lot going on. As a result, even when both parents are qualified, it’s not always possible for California courts to split a child’s time fifty/fifty.

When this happens, the court will sometimes choose a primary residence for the child, and award the non-resident parent ample visitation.

Visitation comes in several types and can be either scheduled or not. This important parental right ensures both parents have time to cultivate a meaningful relationship with their child and to influence how they’re raised.

Here’s what you need to know about visitation schedules in California, and what Maples Family Law can do to help you figure out the plan that’s right for your family.

What is Visitation?

Visitation is a critical part of child custody, and refers to the allotted parenting time given to a non-custodial parent. This in-person time is critical to maintaining parental rights, and ensures both parents have access to their child.

When visitation is planned in advance, this is called a visitation schedule. Visitation schedules can be as detailed or flexible as parents can handle; some need everything planned out, while others work better on an as-needed basis.

Visitation—whether scheduled or not—is only really applicable in situations where one parent is assigned sole physical custody. If both parents have their child for an equal (or close to) amount of time, this is called joint custody.

In California, all custody decisions—including visitation—will be determined, according to a child’s best interest.

Figuring Out the Visitation That’s Best for Your Child

The best interest of the child is a legal standard that makes a child’s long-term health and wellbeing the driving force behind every decision made.

When applied to custody and visitation, the court will weigh a number of different individualized facts, and choose the outcome that will serve your child best.

Some of these considerations include:

The child’s age;
The child’s health;
The child’s relationship with each parent;
The child’s ties to school, home, and community;
Each parent’s ability to care for the child; and,
Any history of family violence or substance abuse.

Judges are also free to consider any other tidbits they think might be relevant to this decision—though, we should point that, that a parent’s wishes will never be one of those morsels.

Types of Visitation

Like with everything else in family law, visitation isn’t a one size fits all situation. Families are each unique, and thus, each will need an arrangement tailored to their child’s unique needs.

To accommodate all these varying needs, California family law offers four main types of visitation. These include:

Scheduled Visitation
Reasonable Visitation
Supervised Visitation
No Visitation

Here’s a closer look at each of these, and when you might use one over the other during a custody dispute.

1. Scheduled Visitation

When people think of visitation, scheduled visitation is usually what comes to mind. In this arrangement, a child’s time with each parent is planned out—often in fairly significant detail.

Often, this calendar often will include information about:

The dates and times with each parent;
Drop off times and locations;
Where the child will spend major holidays;
Who gets the child on birthdays;
School schedules, summer holidays, and family vacations; as well as,
Directions for how special events will be handled.

Contrary to popular belief, parents do not have to use the court in order to get a scheduled visitation. Parents are always free to make their own parenting plan, and can tailor it to meet their family’s specific needs. If you can’t, though, then the court will draft one for you.

This is usually done using a standard visitation schedule as a starting point. These standard schedules come in a variety of different formats, such as alternating weeks, every other weekend, and even age appropriate schedules, depending on the child’s needs. (For example, a daytime only schedule for a newborn baby.)

Scheduled visitation is often preferred over other types of visitation, since both parents know what to expect. This helps them to avoid conflict, and provides children with a set routine. However, not all parents like the rigidity of a scheduled arrangement, which is why some choose our next option.

2. Reasonable Visitation

Unlike scheduled visitation, reasonable visitation does not try to plan everything out. Instead, parents agree to allow the other a “reasonable” amount of time with the child, and get to decide—on their own—what, exactly, that means.

Reasonable visitation is essentially an open-ended, “fly by the seat of your pants” arrangement, and offers families a lot of benefits. Like flexibility, and ongoing communication. Because of this, they work particularly well for amicable divorces, unmarried parents, and those with unpredictable work schedules. However, it’s definitely not for everyone.

With no structure in place—or, even a definition of what “reasonable” might be—this type of visitation can easily lead to disagreements, requiring parents to head back to court again, later on down the road.

3. Supervised Visitation

In a supervised visitation arrangement, a parent’s time with their child is chaperoned. This can be done either by a neutral third party (such as a family friend or family member), or, in some cases, may require a paid professional (such a social worker).

Judges usually require supervised visitation, when the health and safety of the child are in question. Sometimes, this is because of domestic violence. Other times, the court might be worried about mental illness, substance abuse, or even, parental abduction. However, supervised visitation doesn’t always mean you’ve done something bad.

Supervised visitation is also used to help parent and child ease into a relationship, if the two haven’t seen each other in a long time.

4. No Visitation

And finally, there’s our least commonly used type of visitation: no visitation.

We say “least commonly used,” here, because parental rights are pretty dang important in California. Hence, in order for the court to completely restrict a parent’s access to their child, the threat of harm has to be fairly significant.

This is usually implemented in cases of known domestic violence, where the threat of physical and/or emotional harm still exists. In California, the court will not put a child in danger just to uphold a parent’s right to access. That being said, keep in mind that you (as a parent) don’t get to make that call.

In California, parents are not allowed to withhold visitation for any reason. Doing so could put your own parental rights at risk, and prompt the court to reevaluate your custody order.

If you believe your child is in danger, then you should call the authorities. Afterwards, talk to your family law attorney about filing a formal case.

Do You Need Help with a Visitation Schedule in California?

As a divorced or unmarried parent, your allotted parenting time is a critical part of establishing and maintaining a relationship with your child. That’s why it’s so important to have the right attorney fighting for your rights during a custody dispute.

If you have more questions about visitation schedules in California, and how one might work in your situation, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us fight for the arrangement that’s in your child’s best interest.

Child Custody

Intro to Visitation in California

January 12, 2022January 14, 2022
by Briana White

Between school, play, chores, and extracurricular activities, kids are a busy bunch. Which means that when it comes to divorce, it can sometimes be tricky for California courts to divide a child’s time exactly equally between parents—even when both are evenly qualified.

That’s why, in California, it’s common for judges to assign one parent to be the child’s primary residence parent, while awarding the other ample parenting time in the form of visitation.

Visitation is an essential part of custody, and parental rights. It ensures each parent has access to their child, and that both can continue strengthening that relationship through in-person contact.

Here’s what you need to know about visitation in California, how it relates to child custody, and what the Maples Family team can do to help you navigate these important parental rights.

An Intro to Visitation in California

Visitation refers to the scheduled time that a noncustodial parent gets to spend with their child. It is also a major component of child custody; so much so, that you can’t really talk about one without discussing the other.

But what is child custody, exactly?

In California, “custody” encompasses all the rights, powers, and responsibilities that come with being a parent. Technically, someone could have custody over an incapacitated, ill, or aging adult, too; however, this concept is most commonly associated with children and divorce.

As a matter of law, only a child’s parents—whether biological, or adopted—have an inherent right to custody over their child. However, in some limited circumstances, the court might grant the child’s grandparents visitation.

When deciding custody for divorcing or unmarried parents, California will divide these powers into two major groups: legal custody, and physical custody. Here’s a closer look.

Legal Custody

First, there’s legal custody. This aspect of custody deals with a parent’s decision making and legal authority, and enables a parent to make choices about their child’s:

Schooling and education;
Childcare;
Mental health treatment;
Medical care (including doctors, dentists, and emergency surgery);
Extracurricular activities; and even,
Religious and cultural exposures.

Legal custody packs a lot of important rights under one umbrella. From large-scale decisions, all the way down to signing that field trip permission slip, legal custody puts you at the forefront of how your child will be raised.

Physical Custody

On the other hand, is physical custody. And, like its name implies, this category of rights protects a parent’s right to have physical, in-person time with their child.

In legal speak, this time is called “access,” and it encompasses much more than just the occasional fly by.

Parents have a right to see their child—and not just briefly and sporadically—but long-term and extended. They have the right to live under the same roof as their child, where they can regularly interact, care for, and build the kind of a relationship that only an intimate home environment can really provide.

This is where visitation comes into play.

Because it can be so difficult to divide a child’s time exactly equally between parents, California courts will usually assign one parent to be the child’s primary residence, while awarding the other visitation. But how to decide who gets what?

The court makes these assignments by considering what is in the best interest of the child.

Best Interest of the Child

“Best interest of the child” is a legal standard that is applied for all decisions involving minors, and strives to choose an outcome that will serve a child’s long-term health and happiness the best.

Hence, when deciding who will be a child’s primary custodian, and who will receive visitation, some of the things your judge might consider will include:

The child’s age;
The child’s health;
The child’s relationship with each parent;
The child’s social and community ties;
Each parent’s ability to care for the child; and,
Any history of substance abuse or domestic violence.

As you can see, gender does not appear on our list of considerations. That’s because in California, custody decisions are completely gender neutral, meaning that the type of visitation order you receive will depend entirely on your merit as a parent, alone; not your sex (or sexual orientation, for that matter).

Visitation Orders

Visitation orders aren’t a “one-size-fits-all” kind of thing. Instead, these assignments will vary between cases, and are designed to work within your family’s unique circumstances.

To this end, there are four main ways California courts can assign visitation in California. These include:

Scheduled Visitation. In this situation, parents have an order that specifies all the details of their division of time, including dates, times, drop offs, pickups, holidays, and other special occasions. This type of visitation is typically the result of contested divorce litigation.
Reasonable Visitation. Here, a couple’s order is more open ended, leaving the parents to work out specific details, as needed. This type or visitation typically works best for parents who have a good working relationship.
Supervised Visitation. When a child’s safety and/or well-being cannot be trusted to the noncustodial parent, the court might assign supervised visitation. In these scenarios, visits must be chaperoned by either another adult, or professional agency (depending on the circumstances).
No Visitation. Finally, there’s always the option of no visitation. Here, the risks of harm to a child’s physical or mental wellbeing are so great, that the court is not comfortable awarding any type of in person time. In this scenario, the custodial parent would have “sole physical custody.”

In California, parents are always free to come up with their own custody arrangements, either on their own, or through mediation.

However, keep in mind that your parenting plan—including all decisions about custody, visitation, and child support—will still need judicial approval, whether agreed upon or not.

Tips for Reducing Custody Conflicts

Once finalized, your custody agreement will be enforceable, and you will be expected to carry out your obligations, as outlined.

In practice, this isn’t always easy (no one said dealing with your ex would be…) But sharing custody doesn’t have to be as hard as you might be thinking, either.

To help your custody arrangement operate more smoothly, try to use some of these tips when interacting with your ex:

Be polite and respectful.
Be clear and specific.
Stay on topic.
Write down what you discussed, and share a copy with your child’s other parent.
Keep a record of your visitation times, drop offs, and exchanges.
Avoid talking about custody problems while under the influence.
Avoid talking about custody problems while your child is around.
Avoid casual small talk, text messaging, or other non-essential communication.
Make sure you’re both present when discussing important matters with doctors, teachers, and other professionals.
Do not talk badly about your child’s other parent to that child.
Focus on what’s best for your child (not what you want).

If it helps, treat your child’s other parent the same way you’d handle a business colleague. This mentality will ensure that all your encounters stay short, sweet, and professional at all times.

In California, your attitude towards sharing custody can actually influence the division of custody. In some cases, a systematic failure to cooperate with your child’s other parent could actually result in the court awarding primary residence to the child’s other parent. So it’s best to keep things as civil as possible, at all times.

At the end of the day, if there is a legitimate reason why your custody arrangement is no longer working, then it may be time to talk to your attorney about modifying visitation.

Do You Need Help with Visitation in California?

As a parent, you want what’s best for your child, and turning them over to someone you no longer trust can be incredibly difficult. That’s why it’s so important to have a family law attorney you can trust. One who will fight tirelessly for an arrangement that’s in your child’s best interest.

If you have more questions about visitation in California, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and together, we can find the custody order that’s right for your family.

Child Custody

Enforcing a Visitation Order

December 13, 2021December 13, 2021
by Briana White

In California, all custody decisions are made according to a child’s best interest. This includes being able to have a loving, healthy relationship with both of their parents, whenever possible. However, these relationships can’t blossom without quality time.

That’s why when parents don’t live together, the court will often issue a visitation order. These edicts ensure that the rights of both parents are being upheld, and that each has the chance to foster a meaningful relationship with their child.

California courts don’t make these orders lightly, and failure to uphold them can trigger serious legal consequences.

If your child’s other parent isn’t cooperating with your custody arrangements, here’s what you need to know about enforcing a visitation order in California, and how the Maples team can help protect your rights and your child’s best interests.

What is a Visitation Order?

Visitation orders dictate how a child’s time will be spent, including where the child will live, and how they will spend holidays. They are a key part of upholding parental rights—in particular, a parent’s right to have access to their child.

In terms of child custody, this access is often referred to as “physical custody.”

Both parents have the right to physical custody with their child. However, if they aren’t living under the same roof, this time must be shared. To this end, California courts will assign one parent to be the custodial parent (or, primary residence parent), while granting the other ample parenting time in the form of visitation.

Visitation orders are generally just one component of child custody. Along with visitation, your child custody orders will also address legal custody, and outline child support.

How to Enforce a Visitation Order When My Ex Has Primary Custody?

It’s hard being a non-custodial parent. You don’t get enough time with your child as it is, and when your ex stops complying with visitation, this puts you in a tough spot. Because now you have to decide if the stress of enforcing visitation is worth the strain on your already limited time together.

If this situation sounds familiar, start by asking yourself these four questions:

Is my order enforceable?
Does my order need to be updated?
Have we tried making things easier?
Is contempt really worth it?

Here’s a closer look.

1. Enforceability

Visitation orders are kind of like personalized laws made just for you. These edicts are backed by the full weight of the law, and breaking them warrants the same legal consequences as breaking any other law.

That being said, the police can’t enforce a law that’s too vague.

Before jumping through legal hoops, make sure that the terms of your visitation order are clear. In some cases, headaches can be cleared up by shoring up details like specific dates and times—something you may be able to coordinate together, without the court.

2. Updates

If your visitation order is sufficiently clear, then maybe the problem is that your order is dated.

As all parents know, a child’s needs change just about as fast as they grow. Hence, a visitation arrangement that worked well for your family five years ago might not be the best fit here, in the present. Indeed, some agencies won’t even help enforce orders that are too old.

If your order is no longer a good fit, then it might be time to consider a custody modification.

3. Alternatives

You don’t need to go back to court to resolve everything. Before drafting up a motion, try talking to your ex to see if there are tweaks you can make. Sometimes a simple change in drop-off location or an alternative pick up time is all it takes to keep things running smoothly.

If it helps, there are even exchange agencies, which can help supervise the transfer of children between parents. These professionals can be really helpful at both keeping parents honest, and tracking violations. And while they do charge a fee, it’s definitely cheaper than the cost of an attorney.

4. Contempt

If all else fails, the last step you should consider is contempt of court.

Contempt is a criminal action, which can be taken against someone who intentionally and willfully violates a court order. This is a serious charge, and one that comes with a very high burden of proof, meaning they’re tough to litigate—especially for visitation violations.

In terms of custody agreements, contempt is most often used as a means to enforce child support.

If you are thinking about pursuing contempt, it’s a good idea to consult your family law attorney, first. In many cases, the potential benefits aren’t worth the effort of pursuing in terms of visitation.

Visitation Order Modification

Judges don’t want to see you back right after delivering your original visitation order. However, under the right circumstances they are willing to consider a custody order modification.

Some of these circumstances might include:

A repeated, long standing pattern of custody order violations.
The child’s education needs have changed.
The custodial parent’s home environment has changed.
The child is being subjected to harm under the current order.
One parent is no longer fit to carry out parental responsibilities.
There has been a change of employment.
The custodial parent needs to relocate.

As always, California parents are free to draft their own parenting plan—and modifications. This can be done between the individual parents, or in a more structured environment, such as mediation.

Remember, however, that the changes will not be enforceable until they are approved by a judge—even if both of you agree. Until then, be sure to follow your original order, or else you could risk being held in contempt.

Enforcing a Visitation Order in California

Failure to comply with visitation isn’t just a violation of your parental rights. It’s also an affront to your child, who is being robbed of the opportunity to foster a loving, healthy relationship with their other parent.

That’s why if you have more questions about enforcing a visitation order in California, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help ensure your child’s best interests are being met.

family-law

Unmarried Parents in CA

September 24, 2021
by Briana White

Divorce and custody go together about as often as peanut butter and jelly. Hence, it’s easy to see why parental rights and marital rights sometimes get mixed up.

But—just like you don’t have to pair peanut butter with jelly—you also don’t have to be married to be a parent. Which is why parental rights are kept completely separate from the marriage relationship.

Hence, whether you are married, divorced, widowed, partnered, single, or unmarried, parents everywhere have the same rights and responsibilities to their child, regardless of relationship status. That being said, unmarried parents may still face some additional hurdles, when it comes to child custody.

Here are some of the most common questions that arise for unmarried parents in California, and how the Maples Family Law team can help you navigate these challenges.

Presumption of Parenthood

We meant what we said in our intro about parental rights: all California parents have the same parental rights and obligations, regardless of relationship status.

But if that’s true, you might be wondering, then why do unmarried parents in California face additional challenges?

The primary reason that unmarried parents are in this conundrum is because of California’s presumption of parenthood, which assumes that any child born into a marriage is the legal offspring of the individuals in that marriage.

This presumption is great, if you’re a legally married couple, because it allows you to automatically assume the mantel of parenthood (and all of its accompanying rights and responsibilities) without any hoopla. However, there are two main instances when the parenthood presumption falls short:

When both parents are unmarried.
When one parent is married, and the other is not (a.k.a.: adultery).

In both of these instances, California’s presumption of parenthood either wrongly presumes who the parents are, or simply fails to cover one half of the duo, altogether.

Because of this, unmarried parents may have a few more hoops to jump through, in order to establish themselves as legal parents—however, this does not mean that the rights of unmarried parents are any different.

The Rights of Unmarried Parents

Whether adopted or biological, the job of a parent comes with a lot of authority, decision-making power, and responsibility over a child. This authority is what’s roughly defined as child custody, which is divided into two main categories:

Legal Custody—the right to make decisions on behalf of your child, and to determine how they will be raised.
Physical Custody—the right to see your child, spend time with them, and have them live in your home.

These parental rights are given a lot of deference by California courts, and—whether you are married or unmarried—they will not be taken away unless it’s absolutely necessary for a child’s best interest.

However, because the presumption of parenthood falls short, unmarried parents will need to establish themselves as a child’s legal parent, before they are able to exercise these rights.

Establishing Parentage

The nature of the birthing process doesn’t leave a lot of room for doubt as to who a child’s mother is. Hence, a birth mother is automatically considered a child’s legal parent—with full legal power and parental authority—as soon as her child is born.

Unmarried fathers, on the other hand, are not given this automatic presumption, unless they have already been living with their partner in a family-type setting prior to birth. If not, however, the unmarried father will be unable to claim rights to things like custody or visitation until they are recognized by the court as a legal parent.

This can be done one of two ways:

By mutual consent of the parents, upon the child’s birth.
Through a court trial.

Here’s a closer look.

1. Consent at Birth

The easiest way to establish paternity is for both unmarried parents to sign a Declaration of Parentage, upon their child’s birth.

If this form is completed before you leave the hospital, then an unmarried father can be included on their child’s birth certificate right from the get-go. However, this declaration can also be signed later on—even after the birth certificate has been issued—so long as it is voluntarily executed by both parents.

In the event that an unmarried mother refuses to recognize her child’s father, or, if the father does not want to take responsibility for their child, then things will need to be settled in court. Which brings us to the second method of establishing parentage.

2. Court Contested Parentage

The second way to establish parentage is through a judge.

This is obviously a more complex (not to mention emotional) method of establishing parentage. On the bright side, however, these days it is also a fairly straightforward process, thanks to DNA testing.

In California, either a mother or a father can file a parentage case, so long as they meet California’s six months residency requirement, and can show that they have a valid claim.

Typically, the court will respond to these petitions by ordering a non-invasive DNA test (or, in other words, a mouth swab). Refusing to take this test is usually considered an admission of guilt, and the court will assign parentage, accordingly.

Keep in mind, however, that you can’t take the perks of parenthood without the responsibilities. If the court determines that you are, in fact, a child’s legal parent, then you will be responsible for more than just playtime and decision making—you’ll also be on the line for your child’s care, too, which will likely include child support.

Once this parentage is legally established, both parents will need to draft a parenting plan, which will organize your respective rights and duties as co-parents.

California’s Third Parent Law

Historically, same sex couples have faced a lot of problems in the areas of parentage and child custody. This is because—even when they are legally married—it’s impossible for both spouses to be their child’s biological parent.

Because of this, the presumption of parenthood is inherently prejudiced towards them, acting as a barrier to legitimate parents, who are unable to assume parental rights upon their child’s birth.

The problem is, of course, how do you extend these rights to same sex parents, without accidently infringing on the rights of a birth mother (who may not want to give up her rights, altogether)?

Thankfully, California legislatures are working hard to address these issues, and in 2013 they adopted a groundbreaking “Third Parent Law.” Under this new rule, three, gender neutral parent lines are now provided on a child’s birth certificate, allowing a birth mother to retain her rights, while also giving committed, same sex couples and spouses full parenting rights immediately upon their child’s birth.

Unmarried Parents Attorneys in California

Whether you’re a peanut butter and jelly couple, a single condiment parent, or some other kind of sandwich, altogether, parental rights are the same, regardless of your relationship status.

Hence, if you’re an unmarried parent in California, and have more questions about the rights and obligations of you and your child’s other parent, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure your child’s best interests are being met.

Divorce

Parental Rights for Fathers in California

August 19, 2018January 17, 2019
by Angie

In the state of California, parental rights for fathers are incredibly important – and they’re equal to maternal rights. Under state law, fathers have just as much right to see, spend time with and bond with their children as mothers do, and the state (as well as the courts) recognize how important it is for both parents to be active participants in their kids’ lives.

Parental Rights for Fathers

When parents are married at the time of a child’s birth, paternity is presumed. That means the mother’s husband is automatically considered to be the child’s father. That extends past marriage, though – if a child is born and someone is living with the family and fulfilling a fatherly role (by demonstrating a commitment to the child), that person can also be considered the child’s father, even if he isn’t biologically related.

If neither of these circumstances are present, you need to establish your paternity.

Things can get pretty confusing when it comes to parentage, so this might be a good discussion to have with a child custody lawyer in Stockton.

California’s Parental Rights: Fathers’ Rights to Custody and Visitation

As a father, you have the absolute right to seek custody and visitation rights with your children. The law doesn’t discriminate between dads and moms – instead, each parent has equal rights (and equal responsibilities) when it comes to being with the kids.

There are two types of custody: Legal and physical.

Legal Custody	Physical Custody
Legal custody refers to a parent’s authority to participate in big decisions about the child’s health, education and welfare. Most parents share legal custody.	Legal custody refers to a parent’s authority to participate in big decisions about the child’s health, education and welfare. Most parents share legal custody.

If you and your spouse don’t agree to who gets legal and physical custody between yourselves, either as joint custody or full custody, the judge in your case will decide for you. When the judge has to decide, he or she will look at several factors – but the bottom line is that the judge’s decision is supposed to be based on what’s best for the children.

These are some of the factors judges look at in deciding who gets custody in California:

The child’s age
The child’s health
The emotional ties that exist between each parent and the child
The child’s ties to school, home and the community
The ability of each parent to emotionally, financially and physically care for the child
Whether there’s a history of family violence
Whether there’s a history of substance abuse in the family

Do You Need to Talk to a Lawyer About Parental Rights for Fathers?

If you’re not sure where you stand in all of this, you’re not alone – a lot of people are thrown off by the fact that California, like most states, used to favor the mother when it came to rights to the children.

But that was a long time ago, and now, the law and the judges who execute it see mothers and fathers as equals.

We can help you preserve your parental rights as a father, whether you and your ex disagree about child custody, child support or anything else – and we can help you if you agree, too.

Call us at (209) 546-6246 for a divorce case review. You’ll talk to an experienced Stockton divorce lawyer who can give you the advice you need to begin moving forward.

Child Custody

Child Custody Laws in California: What You Need to…

March 27, 2017May 24, 2020
by Angie

Child custody laws in Stockton (and elsewhere in California) are in place to protect the best interests of the children—but they can be a bit confusing. For this reason, many people choose to work with a Stockton family law attorney who understands how our custody laws will impact their families.

Child Custody Laws in California: Types of Custody

There are two types of child custody in California: Legal and physical. Each type of custody requires parents to fill different roles, but no matter who has either type of custody, the state requires both parents to contribute equally to their children’s well-being. Many parents share both types of custody, but there are cases in which one parent is awarded sole legal or sole physical custody of the children in divorce or when unmarried parents split up.

Legal Custody Laws in California

The term legal custody refers to the obligation of one or both parents to make important decisions for the children. Those decisions can include healthcare, education, and general welfare, as well as religious upbringing and a handful of other big issues.

If parents share legal custody, they both have the right to make decisions about their children’s lives. However, one parent can still make a decision alone.

Physical Custody Laws in California

The term physical custody refers to the obligation of one or both parents to provide a place for their children to live. A large majority of parents share physical custody—when this happens, it’s called joint physical custody—but that doesn’t mean that kids live with one parent half the time and with the other parent the other half of the time.

In some cases, one parent is awarded sole or primary custody. In these cases, the children live with one parent most of the time but still typically visit the other parent.

How Do California’s Child Custody Laws Determine Each Parent’s Rights?

California’s child custody laws require the courts to consider several factors when a judge is awarding custody. Naturally, both parents have the right to state their preferences in court and explain why they want legal or physical custody.

The court will consider:

The child’s age
The child’s health
The emotional ties that exist between each parent and the child
Whether the parents have the ability to care for the child
Whether there’s any history of violence or substance abuse among the parents
The child’s ties to his or her home, school, and community

Do California Courts Automatically Give Custody to the Mother?

It’s a common myth that the courts “automatically” award custody to the mother. Our child custody laws are very clear that the courts have to consider several factors, and, above all, put the child’s best interests first.

What if You and Your Spouse Agree on Child Custody?

Lots of couples agree on child custody and come up with their own visitation schedules. As long as the court sees that the agreement is fair to the children, and as long as you both understand what you’re committing to, parental agreements are usually fine.

It’s important to remember, though, that even if you and your spouse agree on a custody and visitation agreement, it’s not legally enforceable unless you’ve turned it in to the judge and he or she has turned it into a court order.

What if You and Your Spouse Don’t Agree on Child Custody?

If you and your spouse can’t agree on a child custody arrangement, the courts will decide for you. Your attorney will probably suggest that you try mediation or compromise so that you and your soon-to-be ex can reach an agreement on your own for three reasons:

It’s easier on your children (and you)
Fighting over custody in court can become expensive quickly
You may not like the final decision the judge makes

Do You Need to Talk to a Lawyer About Child Custody Laws in Stockton?

We understand that child custody is one of the most difficult parts of divorce, and we’re here to help you make the best decisions—not only for your kids, but for yourself.

Call us at 209-910-9865 today. Tell us about your situation so we can begin developing a strategy that gets you and your children the best possible outcome.