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Published: 2008-03-26

Protection for Unmarried Parents



Unmarried parents face unique challenges when they separate. Unlike their married counterparts, unwed fathers are not automatically presumed to be the biological parent of their children despite the fact that they may be listed on the child's birth certificate. Without a finding of "paternity", the mother has no rights to recover child support from the father. Conversely, the father will find himself with no recourse to seek custody or visitation rights with his child.

The term "paternity" refers to the legal system recognizing a person as a child's biological parent. When people are married and a child is born, the law presumes that the husband is the biological father. Thus, "paternity" need not be established when the parties divorce. However, when parents are unmarried, no such presumption exists. For children born out of wedlock, "paternity" may only be found if a person voluntarily signs a declaration stating they are a biological parent or if the court is involved through the filing of a "Paternity Case." Once "paternity" is established under California law, parents assume the full rights and responsibilities involving their children.

Unmarried mothers and fathers often face different problems when they separate. The balance of this article will highlight common issues facing both parties.

The Unmarried Mother: The Battle for Support

A typical situation facing the unwed mother is one where she is caring for a child without receiving any financial help from the father. This is especially a problem for young mothers who lack the educational background or job experience to earn anything much greater than a minimum wage income. For this person, obtaining child support from the father becomes a necessity.

Too often, women falling into this category find themselves seeking financial assistance from the county. When governmental aid is granted for children, the county must seek welfare reimbursement from the father through the filing of a lawsuit. In order to obtain such reimbursement, county officials must first establish the father as a biological parent by obtaining a court finding of "paternity."

For those fortunate enough to remain off the welfare roles, a finding of "paternity" is still required in order to force the father to contribute to the financial support of his child. Without such a court finding, there is no way to enforce a father's obligation to pay child support. The enforcement issue is very important. Situations occur where a mother receives voluntary payments of child support for many months, or even years, only to find that the father suddenly ceases his financial support because a dispute arises involving custody or visitation. Sometimes the father may decrease or stop his child support payments because he has remarried or has other children to support. In either case, the mother soon discovers that there is no way to force the father to continue payments. Enforcement of child support only becomes possible when "paternity" is established. Once that step is completed, then the mother will be able to enforce her right to receive child support.

In non-welfare cases, it is possible for a parent to seek a child support order by requesting assistance through the District Attorney's office. However, the problem in seeking D.A. representation is two-fold: First, County D.A.'s are woefully understaffed and it may take weeks and sometimes months before a child support case can be opened and successfully prosecuted. Second, County D.A.'s cannot obtain any other relief for a parent other than enforcing child support. This means that parents seeking child custody and visitation orders are on their own.

An enforceable child support order provides many advantages. First, the parent owing support may not evade their financial responsibility by filing a bankruptcy. Second, payment of child support is given a priority under the law. If the paying parent has other creditors, child support goes to the head of the payment line. Third, child support can be easily enforced through a "wage assignment." The "wage assignment" makes it possible to obtain child support directly from a person's employment income. In such a case, a check will come directly from the employer. Finally, an enforceable child support order will permit interest to be added at the rate of ten percent (10%) a year on any unpaid amounts. There are also provisions under the law for an additional six- percent (6%) penalty to be added to late payments.

For the unwed mother, seeking a finding of "paternity" becomes indispensable in forcing the reluctant father to help financially support his child.

The Unmarried Father: The Battle for Parental Rights

Unmarried fathers often feel cheated by the system when it comes to the issue of their children. It is undeniable that custody and visitation issues have taken a back seat to child support during the past few years. Politicians are beating the drum loudly for prosecution of so-called "deadbeat dads." District Attorneys' are filing record numbers of enforcement cases and are armed with formidable tools. A father who falls behind on his child support payments can expect to pay hundreds, sometimes thousands, of dollars in interest, lose their drivers and other business licenses, have their federal and state income tax refunds intercepted, not to mention possible criminal prosecution.

Once a father is hauled into court, he quickly finds that child support is calculated not only using the gross income of both parents, but also upon the percentage of time that he spends with the child. But herein lies a huge catch. The court will not usually consider the time a father spends with his children unless there are existing court orders regarding visitation. Without orders, the court will set the time-share between father and child at zero percent (0%). The effect of using a zero percent time-share will be to set child support at the maximum level. Here is an example:

Martha and Tom are unmarried and have a son, David. Martha earns $1,000.00 gross monthly income while Tom earns $3,000.00 gross monthly income. David lives primarily with Martha during the week, but Tom maintains a close relationship with his son including visits every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m., one overnight every Wednesday night, split holidays and six weeks each summer. Martha and Tom have never obtained court orders regarding custody and visitation of their child.

In this example, if Martha attempts to obtain a child support order, Tom would be ordered to pay $403.00 per month assuming that custody and visitation orders are in place. However, without visitation being formally recognized by the court, the child support calculation would be based on a zero time-share, which would then result in Tom being ordered to pay $562.00 per month. That's a difference of $159.00 per month simply because Martha and Tom never bothered to insure that their agreement regarding their son was made an order of the court.

Tom is also in for another shock if, one day, Martha decides that the contact schedule that David has been having with his father is no longer working. Without court orders, Tom has no enforceable rights to see David. Going to the police station will be a waste of time because police insist on seeing court orders before intervening in domestic disputes involving children.

This is not a pretty picture. Tom, like many unmarried fathers, is expected to pay child support and will be prosecuted by the District Attorney if he fails to do so. However, there is no one who will fight as rigorously for Tom should he attempt to enforce his right to be a part of his child's life. Tom's only recourse is to seek court orders that will insure that the time he spends with his child is both recognized and protected.

Until a child has graduated from high school, unmarried parents who fail to obtain court orders run the risk of serious financial and emotional harm. The safest course for both the short and long term is for parents contemplating separation to seek professional advice regarding their particular situation. Having enforceable court orders at hand will protect not only the interests of mother and father, but will also insure that the child does not become part of a veritable tug-of-war.