Parenting comes with many facets. As a parent, you have the right to see your children, make decisions on behalf of them, and support them in their activities. However, not all families are the same, and determining the responsibilities and rights could be hard. You can get in touch with us at the Los Angeles Divorce Lawyer to learn the different parental rights, how parentage is established, and parental rights termination.
What are Parental Rights?
Parental rights refer to your rights to make decisions about your children's healthcare, religion, and education. If you are divorced or separated, parental rights extend to visitation and custody. Although the rights are automatic in some family structures, such as with a married couple during childbirth, it might be crucial for a parent to file a petition in court for these rights, especially in disputed paternity cases.
Additionally, parental rights can be terminated, either implicitly or explicitly. For instance, a father who does not claim paternity or whose paternity is never proved does not have parental rights. Also, the father can voluntarily relinquish the rights. The court could also terminate parental rights for either parent, against their wish, in instances of abandonment, neglect, abuse, or if the parent has an extended mental condition, incarceration period, or drug and alcohol impairment.
Establishing Paternity
In a paternity case, commonly known as a parentage case, the judge makes an order that determines who a child's legal parents are.
If you're married when your baby is born, usually, there are no parentage questions. It is assumed that you and your spouse are the baby's legal parents.
If a child's parents were unmarried when the baby was born, or the mother became expectant, the child doesn't have a legal father until paternity is established. Even if the father could present evidence that he's the child's biological father, he doesn't lawfully have responsibilities and rights for the baby if he was unmarried to the child’s mother.
Establishing paternity is essential before a court orders child support, custody, and visitation. You could request the court for child visitation, custody, or support orders to establish paternity. If the father denies that he's the father, the judge could order the parents and the child to provide genetic testing.
Also, establishing child parentage is crucial for gay relationships if the parents were unmarried when the baby was born or when the mother became expectant. For instance, if two (2) unmarried women want to bring up a baby together and a woman who didn't deliver the baby wishes to be a legal mother, she should request a court order that legally establishes her as a parent. Then the court will order that person to prove that the partners intended her to the other mother. Parentage laws are complicated. Therefore, it is essential to talk to an attorney to comprehend your situation's details.
After you are legally the child's parent, you will have the parent's responsibilities and rights, such as:
- You can request visitation and custody orders from a court of law.
- You should pay child support, half of the uninsured healthcare expenses for your child, and half of the baby-care expenses that stem from custodial parent obtaining, attending school, or employment.
Sometimes, the court might determine that a minor has at least two parents. Usually, this occurs when it could hurt the minor if more parents weren't lawfully recognized. Even in this situation, all parents have parentage responsibilities and rights.
Why Is Establishing a Child's Paternity is Essential?
One of the benefits of establishing paternity is the fact that the minor knows who their parents are. Moreover, it gives minors the same privileges and rights as those of children with married parents.
These privileges and rights include:
- Documentation identifying all parents
- Having the name of all parents on the minor's birth certificate
- Financial support from the parents
- Can access family medical history and records
- Life and health insurance from any parent
- Rights to obtain veteran's benefits or social security
- Inheritance rights
After paternity is recognized, the judge orders health insurance, visitation, child support, name change, child custody, delivery charges, and pregnancy compensation.
Even if one of the biological parents doesn't have money to support their child or doesn't desire to be involved in the minor's life, it's wise to establish paternity. The advantages of recognizing parentage include permitting the minor to obtain health insurance or child support when the other legal parent is in a better situation financially or acquiring employment.
Presumed Parents
It is assumed you are a minor's other legal parent under the circumstances below (unless verified otherwise):
- If you had married the mother when your baby was born or conceived
- If you tried to marry the mother (regardless of whether the marriage isn't legal) and the baby was born or conceived during your marriage
- If you married the child's mother following the delivery and agreed to either support the minor or have your name on the birth certificate
- If you welcomed the minor into your home and openly behaved as if the baby was your own (paternity by estoppel)
Also, these presumptions apply to registered domestic partners and same-sex partners.
How Parentage is Established
There are two methods of establishing parentage if the parents are unmarried:
- Obtaining a court order
- Signing a voluntary declaration of paternity
When signed by all parents, the latter is a governmental form that proves them the child's legal parents. The form should be signed willingly. The form's objective is lawfully and officially establishing who the child's parents are when they are unmarried.
After the declaration is signed, it should be brought with the Department of Child Support Services Parentage Opportunity Program to be operative.
How to Dispute Parentage
An individual who wants to dispute their child's paternity can follow either of the procedures depending mainly on how and whether paternity was established.
Often parents sign a Declaration of Paternity form when a baby is delivered. If the child's parentage is disputed, later on, the parent should bring a Declaration of Paternity Rescission form in sixty days following the signing of a Declaration of Paternity. The other legal parent should then be served with the petition's copy, and a court hearing held. Genetic testing might be ordered to know the biological parents of the child.
If paternity was not recognized, one parent could open a parentage case, and their partner will receive a Summons and Complaint Regarding Parental Obligations. Following obtaining the papers, the putative parent should respond within thirty days. Otherwise, the judge might rule in the petitioner's favor and declare the respondent is the parent. When bringing the response, the putative parent can indicate that they don't think they are a parent to the minor. In this case, genetic testing will be conducted.
If the minor's mother is married, the law presumes her husband to be the father. Nevertheless, if paternity is not guaranteed, the supposed father or the husband could bring a motion that determines parentage through genetic testing. The statute of limitations is two years from the baby's birth.
For same-sex relationship parents, a partner could bring a Petition to Establish Parental Relationship. In case one partner doesn't reach an agreement that they want to be the parent of the child, they can dispute the parentage in response to the petition. They should present proof demonstrating that they didn't intend to have a child-parent relationship with their minor during the court hearing.
Can a Parent Give Up Parental Rights?
Termination of parental rights involves a court order where a parent lawfully ends a parent-child relationship for good. The rights could be terminated involuntary or voluntary. Below is an overview of how you can give up your parental rights in Los Angeles.
Voluntary Termination of Parental Rights
Voluntary termination of parental rights rarely occurs unless the minor is being adopted, and there should be a good reason why the court should do so. For instance, the court will support voluntary parental rights termination when a stepfather is willing to adopt a minor and take care of their partner's baby. The biological parents should consent to parental rights termination. The parent voluntarily relinquishing their rights should be served with enough notice before doing so. The parents should also be allowed to object or consent in person during the court proceeding to relinquish rights.
Terminating Parental Rights in Juvenile Dependency Court
One of the situations where parental rights can be terminated is during a juvenile dependency court proceeding. If either of the parents are found to be abusive, involved in crime, have substance abuse challenges, or found unfit, the court could terminate parental rights. Once parental rights are terminated, the government becomes the minor's legal custodian. It allows the child to be placed for adoption without the consent of their biological parent.
Termination of parental rights shouldn't be taken lightly, and a petition to terminate them is not granted always. You will not have the rights terminated just because you are annoyed with your partner or don't want your partner to be a part of your child's life.
Terminating Parental Rights Because a Minor was Abandoned
Under Family Code 7820, it is possible to terminate the custodial and parental rights of an individual who abandons their child. Termination of the right prevents the other parent from having the parental time or child custodial rights in the future.
Only the following can file parental rights termination proceedings to have a baby who is below eighteen years:
- The minor's legal parent
- The child's grandparent
- The child's stepparent
- An adult sibling of the minor
- Any adult who has previously take custody and care of the minor because the legal parents were absent
When Could You File a Child Abandonment Case?
You can file the child abandonment case under either of the circumstances below:
- The legal parent(s) of the minor left the child without identification like a birth certificate.
- A parent left the child with sole custody or both legal parent or in custody or care of somebody else for more than six months. And during that period, the parent(s) haven't communicated with their child or offered financial support.
- The other parent has left the minor in your custody and care for more than a year and hasn't communicated with your child or provided any child support during that period.
Due to child abandonment cases’ sensitive nature, no family law court is willing to terminate parental rights. A seasoned lawyer can help you prove that a child abandonment case is necessary under circumstances and termination in the child's best interest.
Other common reasons for involuntary parental rights termination include:
- Severe or chronic abuse or neglect
- Sexual abuse
- Parental long-term mental condition or deficiency
- Other minors in the household are neglected or abused.
Can You Reinstate Parental Rights Following Termination?
The laws that allow reinstatement were passed due to older children who were aging out of foster care and needed to re-establish family ties. Typically, reinstatement is available if the minor hasn't been placed with a foster home permanently.
You should petition the court that terminated your parental right. The court must then determine if you are fit to offer a nurturing and safe home for your baby.
When it comes to eligibility, three (3) years should pass from the termination date (unless it's determined earlier that the minor might not be adopted). The court should also identify a factual basis to find that reinstatement is in the minor's best interest if your child is below twelve years.
Child Custody
Judges should put into account the best interest of the minor when deciding how the parents will share parenting time with their child. Both parents have equal rights as far as custody is concerned, and it is illegal for the judge to give preference to any parent based on gender. When determining the best interest, the law outline the following guiding policies:
The minor’s benefit from constant contact with all parents
Welfare, safety, and health of the children
Safety and Health
Courts in California should consider specific factors that affect a minor's safety and health. For instance, a judge cannot grant visitation or custody to a child's father, who was conceived following the father raped the mother. The law also bans a judge from issuing unsupervised visitation or custody to an individual who has committed first-degree murder to the minor's other parent unless the court finds the parent's criminal history is not a threat to the minor and explain it in writing. Moreover, the court could restrict these parental rights for a person who has abused their partner or child even though the abuse did not lead to a conviction provided a dependable source independently corroborates it.
Continual or habitual unlawful alcohol or drug abuse are factors associated with a child's safety and health.
Preference of the Child
The laws require a judge to consider the wish of a minor who is mature to make informed decisions about custody. The laws don't specify any age. However, the more mature and older the minor is, the higher the court's likelihood is to consider the child's opinion.
Co-Parenting
Judges also put into an account which parent can encourage a relationship and constant communication between the other parent and the child. Courts view unfavorably any person whose conduct hinders the minor's relationship with their other parent.
Stability and Continuity
Courts favor maintaining continuity and stability in a minor's environment, such as maintaining established care patterns and safeguarding emotional relationships with the primary caregiver.
Custody Options
Child custody in California consists of:
- Legal custody: The authority of a parent to engage in decisions affecting the minor's education, welfare, or education
- Physical custody: The minor's physical presence with you
Joint physical custody refers to every parent having substantial physical custody periods. It does not have to be an equal amount of time. The court awarding joint legal custody might or might not order joint physical custody. You and your partner might agree to joint legal custody without agreeing to equal physical custody.
The law favors custody when legal parents agree. If you fail to agree, there isn't a beginning presumption either against or for joint custody. Rather, the judge has the discretion to develop a parenting plan in your child's best interest. If a judge fails to order joint custody in a case where any parent has asked for it, the judge should issue a written explanation for their decision.
You can also design your parenting arrangement concerning physical and legal custody. The law requires you to attend mediation before engaging in a disputed court proceeding if you fail to reach an agreement. If you are still not in a position to agree, the judge determines custody.
Child Support
Depending on your case outcome, one parent can be named the primary custodian and the other non-custodian. That means the minor's primary custodian has child custody most of the time and determines where their child resides. Often, the non-custodial parent is awarded visitation rights in several abilities depending on the case circumstances. It might include:
- Unsupervised visitations
- Weekend visitations
- Supervised visitations
Whether you are declared the primary custodian, you have the right to seek child support assistance. The non-custodial parent should pay you to cover for the child's educational expenses, food, shelter, clothing, and medical expenses.
The judge calculates the amount every parent should pay in support. The court considers the net disposable income for all parents. Net disposable income is income after health premiums, taxes, alimony or child support, retirement contributions, or union dues are paid. The judge will also look at other sources of income like:
- Commissions
- Property
- Stocks and dividends
- Bonus
- Unemployment benefits
- Employment wages
- Social security and pension
Typically, child support in California continues until the baby:
- Turns eighteen years of age and has graduated from high school. If your child attends part-time school due to a disease or is a full-time high school student, they will continue receiving child support.
- Passes on, joins the military or marries
- Turns nineteen years of age
If you fall behind in payment, you should pay interest on the balance due on the amount you owe.
Frequently Asked Questions
Discussed below are questions commonly answered by the legal team at the Los Angeles Divorce Lawyer?
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Does a Non-Biological Parent Have Different Parental Rights Compared to a Biological Parent?
As the name suggests, non-biological parents are ones who aren't biologically related to the minor. They could still receive legal parental status through adoption that allows them to gain physical and legal custody of the minor child.
Generally, they have the same rights as biological parents as long as they are lawfully established as the parent. Sometimes, they might receive more parental rights compared to biological parents. It occurs when the biological parents cannot meet parental duties due to incarceration, incapacity, or neglect.
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If You Transfer Custody to the Child's Other Parent, Do You Still Have Parental Rights?
When you transfer child custody to the other legal parent, it doesn't mean you lose all the parental rights. You can still have some of the rights, mainly if physical custody is between parties. The custody arrangement is not uncommon in legal separation or divorce cases.
The right that you retain (residual parental rights) include:
- Rights to consent to child adoption
- Right to decide on your child's religious belief
- Right to child support
- Visitation rights
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Is There a Cap on Child Support Payments?
The state of California does not have a cap on the amount of support you should pay. The amount you pay is a calculation founded on income, wages, custody time, among other factors.
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Can the Primary Custodian use the Money on Goods or Items that are Not Directly Linked to Childcare?
Yes. The law does not stipulate how child support payments should be used.
Find Legal Help Near Me
Sometimes you might feel your rights to a relationship with your children are compromised or aren't obtaining the same level of support the other parent would receive in a similar situation. In this case, it's in your best interest to seek help from the experienced attorneys at Los Angeles Divorce Lawyer. We have a background and knowledge in parental rights and can make sure your rights are protected, and you receive the support and time you need with your child. To book your initial consultation, contact us now at 310-695-5212.
