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# 504 Living together: Having children

mp3 #504 Living Together - Having Children (mp3 file)


Family Law matters are very complex. Many who try to handle these matters on their own quickly find themselves overwhelmed and out of favor with the courts. Often times costs are cited as the reason for self representation. However, most people with assets and retirement plans stand to lose significant amounts of money, or worse, lose custody of their children if they are not properly represented. Continue here to be referred to an experienced and insured Family Law attorney:


There are increasing numbers of couples in California who are living together without being married, and some of these couples are having children. This message will discuss some of the legal problems faced by unmarried couples who have children, and ways you can solve these problems.

When your child is born, you may give your child any names you choose. Your baby does not have to be given the mother's last name, or the father's last name, although it is customary for the child to have the last name of one or both parents.

If the baby's natural father wishes to establish that he is the baby's father, it is wise for him to sign a statement acknowledging paternity, saying that he is the father of this baby. Sample paternity statements may be found in low-cost books about living together, written by California attorneys. Such books may be available at your local bookstore, or at your public library. A written paternity statement protects the legal rights of the father, the mother, and the child, and it should be signed and notarized as soon as possible after the baby is born. Separate notarized copies should be kept by the mother and the Father, and one should also be kept in a safe place for the child. It is best for both the natural mother and the natural father to sign the acknowledgment of paternity, to avoid the mother denying at some future time that the man is the natural father of the child. You may prefer to have an attorney draw up your paternity statement, or you may wish to write your own and then have it reviewed by an attorney.

California has adopted the uniform parentage act, which says that the parent-child relationship extends equally to every child and to every parent, whether or not the child's parents were ever married to each other. But it is still important to legally establish who are the child's natural parents. A signed paternity statement will protect both parents and the child, when it comes to child custody, child support, adoption, inheritance, and other legal rights. Even without a signed paternity statement, California law presumes that a man is the father of a child if he is married to the mother at the time the baby is born, or anytime within 300 days before the birth of the child. California law also presumes that a man is the father of the child if he receives the child into his home and openly acknowledges himself as the child's father.

If the natural parents of a child have been living together and then decide to separate, what arrangements can be made for child custody, support, and visitation? Since unmarried couples do not get a divorce or dissolution when they separate, there is no automatic court order to deal with custody, support, or visitation. However, the child's parents may voluntarily enter into a written, notarized separation agreement, which covers these areas of concern. You should not consider such agreements as permanent, because changes in the circumstances of the parents and the child may require later changes in the written agreement. But it is still important to have a written agreement to begin with. Both the father and the mother should keep their own copy of the separation agreement.

If no written separation agreement is entered into, who has custody of their child if an unmarried couple stops living together? The answer to this question is that both parents have an equal right to custody, as long as the father has already acknowledged that he is the child's father. Thus, neither the natural mother nor the natural father has any legal right to deprive the other parent of the right to custody or the right to visitation, unless the matter is taken to court and the judge rules otherwise. If the father has not already signed a paternity statement, or acknowledged his fatherhood in some other legally recognized way, then the father has no legal rights to custody if there is a dispute with the child's mother, another relative, or a public agency that recommends a foster home for the child. However, a natural father can protect his rights in such a situation by immediately filing with the court a complaint to establish parental relationship. If a problem arises about custody of the child, an unacknowledged natural father of a child should probably see an attorney as soon as possible.

The unmarried parents, of a child who is mutually acknowledged as their child, both have visitation rights, just as married or divorced parents. But if a child has not been acknowledged by an unmarried father, a court is not likely to grant visitation rights to him. Again, a complaint to establish parental relationship can protect the natural father's rights.

What about adoption? May the child of unmarried parents be adopted by someone else, such as by the new husband or wife of one of the child's parents? The answer to this question is that both natural parents must give their consent before the child may be adopted, but this is true only if the father has previously acknowledged that he is the father of the child. Abandoning a child will also deprive a natural parent of the right to prevent' adoption of the child. Abandonment happens when a parent fails to support the child when financially able to support, and when a parent fails to visit regularly and maintain· a relationship with the child.

Both unmarried parents are responsible for the support of their child, whether they are living together or not. A natural mother or father has a duty to support their child, if they are financially able, and even if they fail to acknowledge that they are the parents of the child. Failure to pay child support can result in criminal prosecution and time in jail.

Social Security benefits may not be denied to children whose parents were never married. However, there needs to be proof that the man was actually the father of the child, and a written paternity statement signed by the father may provide this needed proof. A paternity statement will also make it easier for a child to inherit property, if an unmarried parent dies without a will.

Many of the problems which have been discussed so far in this tape, can be avoided by voluntary, written agreements between unmarried parents. But if voluntary agreements are not possible, either parent can seek a court order to deal with such problems as custody, support, visitation, and whether or not the man is the natural father of the child.

As an unmarried couple, you may also have children from a previous relationship with another partner. Today in California, must judges will not deny you custody of your children just because you are living with a new partner without being married. Instead, custody is determined by considering what is in the best interests of the child, and California courts now favor joint custody by both parents.

In the same way, you will not be denied visitation rights with your child, just because you are living with someone else without being married.

What about child support, when you have physical custody of your children, and you are living with a new partner without being married? The children's other parent is still required to pay child support to you, but the amount of child support may be reduced by the court, if your new partner is providing shelter, food, clothing, or other items that benefit your children. Your new partner is not legally obligated to support your children from a former relationship, however.

What about spousal support or alimony, which a court has ordered your former spouse to pay to you? Does this change if you start living with a new partner? In California, courts may reduce or eliminate the spousal support you are receiving, if you are cohabiting with a person of the opposite sex.

If you can agree with your former spouse, you may voluntarily draw up your own support change agreements for court approval. If you can agree to this, you will avoid expensive court proceedings.

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