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Paternity, Child Custody, & One-Night-Stands

February 24, 2019 - By Bob Nachshin and Heather Saint

A casual encounter that has potentially resulted in a child can quickly turn into a complex custody case. If the potential father is interested in being a part of the child’s life, the next course of action would be to consider paternity and child custody rights. Although this post discusses issues from a father’s perspective, it can be applicable to either parent. 

Step One: Establishing Paternity

            The first step is to establish paternity. In California, paternity (“legal fatherhood”) can be established through two main methods: voluntarily signing a Declaration of Paternity, or (2) getting a court order. The Declaration of Paternity is a good option for unmarried parents. Both parents must sign the Declaration for it to be valid. Alternatively, the mother may serve the father with a Summons and Complaint to establish paternity and other responsibilities. Either parent, or the Department of Child Support Services, can first request genetic testing to determine whether the child is the father’s biological child. It may be best to establish a biological connection before legal parenthood for peace of mind and assurance, among other factors. This can be further complicated if the mother was married at the time of birth. In most states, the mother’s husband will automatically be considered the legal father unless proven otherwise.

            If the father’s goal is to eventually obtain some degree of visitation or custody, then paternity is a big step in that direction. However, establishing paternity does not guarantee either visitation or custody, and also has the potential to make the father liable for many costs and responsibilities regardless. The purpose of establishing paternity is to ensure that the child has financial support, access to family records as well as access to the father’s medical benefits. Signing a Declaration of Paternity or otherwise legally agreeing to paternity prior to confirming a genetic match could make that potential father responsible for child support, medical fees, and other costs. However, the court will only make custody orders after paternity is established.

Step Two: Visitation/Custody 

            Once paternity is established, the father’s next step is to obtain court orders regarding custody or visitation. Both parties can voluntarily enter into Child Custody Recommending Counseling Mediation, where they will reach an agreement as to custody and parenting; otherwise, the parents can request court intervention. In California, under Family Code §3040, the court will determine custody orders based on the “best interest of the child.” This is meant to allow the court and family “the widest discretion” in determining a parenting plan. 

It is public policy to ensure that children have “frequent and continuing contact” with both parents. There is no presumption that the mother would have priority for custody. However, if the mother was unmarried and the father was absent or unknown at the time of birth, then the mother would presumptively have full physical and legal custody until the father declares paternity and files with the Court. The Court will consider many factors under California Family Code §3011 to determine what constitutes the “best interest of the child,” such as the health and safety of the child, a history of abuse by either parent, or use of illegal or controlled substances by either parent. 

            Custody matters get far more complex when one parent wishes to have sole physical custody of the child.  Absent extenuating circumstances, such as neglect or abuse, it is unlikely the court will find that it is in the child’s “best interest” to be removed from one parent entirely. It may be more common for the court to award sole physical custody to one parent but allow the non-custodial parent to share in decisions regarding the child’s health, well-being, and education (joint legal custody).

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