Whenever there is a family breakdown, the interests of the children should be at the heart of the resulting legal agreements. This is why it is important for all parents to fully understand their parental rights and obligations. Even in stations where all parties are in agreement about the best course of action, everyone still needs to be aware of the rights they are assuming and the ones they are giving up.
In the state of California, any legal dispute involving children must first be mediated before it can return to the court. This leaves the family law courts free to deal with more pressing and urgent matters. Mediation is a process where both parents sit down with a mediator to talk about the case. It typically occurs through a series of meetings. By the end, an agreement is either reached or not. If an agreement is reached, it becomes part of the binding family law ruling. In situations where an agreement could not be reached, the case returns before the court.
Mediators are there to ensure that the resulting agreement is fair to both parties. However, they do not have any obligation to inform you of your rights or to ensure that they are upheld. For this reason, it is always a good idea to learn as much as you can in advance. You should also hire a lawyer at this stage to review any agreements and ensure they are fair.
Right to Information
All parents have the right to information about their children and to have input in the decision-making process surrounding their upbringing. This includes being allowed to have a say in decisions about their mental health care, medical care, dental care, schooling options, and religious upbringing. In California law, this right is referred to as “legal custody.”
In most divorces, both parents retain legal custody, even if the time spent with children is unequal. A parent must prove that the other party is incapable of making decisions with the child’s best interest to have this right removed. If parents have a fundamental disagreement on a legal custody matter, courts typically rule in favor of the parent with whom the child spends the most time. This is because this parent is deemed to be more familiar with the child’s needs and interests.
Right to Time with Children
Another right shared by parents is the right to spend time with the child and to be a part of the child’s daily routine. This includes things like dinner, pick ups and drop offs at school, bath time, story time, and putting them to bed. In California, this right is called “physical custody.” It isn’t uncommon for one parent to be granted sole physical custody, while the other is permitted frequent visitation. This is often done in stations where one parent has relocated for work, or is involved in an industry with unreliable shift work.
Increasingly, the courts are defaulting to joint physical custody with equal time with the children. This is in keeping with the wishes of many parents who want an amicable separation. Remember to always seek out a lawyer’s advice, despite the friendly nature of your relationship breakdown. It is important to ensure that everyone’s rights are being protected and that agreements are recorded in a legally binding way.
When this issue is raised before the court, most mediators and judges look at the established status quo. For example, prior to separation, was one parent primarily responsible for caring for the children? Did this continue after separation? If so, that parent may have more success arguing for primary physical custody. Children are very resilient, but they do thrive on routine, so it is important to establish one where they spend time with both parents as soon as possible if this is your intent after separation.
Unmarried Parents’ Rights
Parentage must be established before a parent is able to claim any rights to a child. It is naturally assumed with married couples and survives divorce. Unmarried couples must file legal paperwork declaring parentage if they want to have any rights to their children. In most cases, this is done by way of declaration. You can file this paperwork at any time. In fact, it is best to do so as soon as possible, to ensure that all parents involved in the child’s life are able to obtain information about them and to participate in decisions about their wellbeing.
Until parentage is established, the parent is not granted any rights to their child, including the right to information and the right to visitation. After this declaration is signed, full rights are granted but come with the obligation to financially support the child. You cannot opt out of your obligation to provide financial support, even after the breakdown of a relationship or if your rights are challenged.
Even in cases where parentage is established, the courts may still restrict their parental rights. This can happen in cases of abuse, neglect, or if there are substance abuse issues on the part of the parent. The process to remove these rights once parentage is established is the same as with married couples. Remember that the courts focus primarily on the best interests of the child involved, not those of the parent. If they determine that the child is at risk left with one parent or the other, they are free to restrict those rights.
Terminating Parental Rights
Terminating parental rights can be done voluntarily or by court order. Fathers who do not wish to be involved in their child’s lives may agree to waive their rights, either before or after a stepparent expresses a wish to adopt. In other cases, grandparents may be responsible for raising children after the biological parents have failed to exercise their parental rights.
California family law allows for the termination of parental rights if it is determined that the child has been abandoned by one or both parents. They make this determination by examining the behavior of the parent, in particular, looking to see if the parent has:
- Ever provided financial support, and the amounts
- Any contact with the child for at least a year
- Expressed an intent to abandon the child
When you seek to terminate these rights, you block the other parent from exercising them again. This includes the right to information about the child now or as they age. Bringing an application for child abandonment, and consequently terminating the parental rights of the application’s subject, can be done by any one of the following individuals:
- The child’s legal parent
- The child’s parent
- The child’s step-parent
- A sibling who is 18 years of age or older
- Any other individual 18 years of age or older who has been the child’s primary caregiver in the absence of their parents
How to Challenge Parental Rights
California courts are required to put the best interests of the child first, and in most cases, this means granting equal rights to both parents. Of course, this is not always the case. There may be persuasive or compelling reasons to only grant rights to one parent. For example, domestic violence, drug and alcohol abuse, child abuse, and child abandonment are all cases where the courts rule in favor of one parent over the other.
Challenging these rights is very difficult in mediation, as the other parent may not admit to their poor behavior. This usually means the mediation fails and the case proceeds to court. There are numerous documents that must be filed to seek sole custody, along with various forms of evidence including sworn affidavits. While there are no rules preventing a person from advancing a claim for sole custody on their own, it is advisable to seek out legal counsel. Lawyers are highly skilled in matters like these and are also familiar with the court system.
What to Do if Your Rights are Being Challenged
If you are served with court documents challenging your parental rights, your first call should be to a family law lawyer. This is not a matter you should litigate in court yourself, as the family law system is complex and hard to navigate. It is also important to handle the situation with as much grace and tact as you can. If you still have access to your children, do not let them know your rights are being challenged. You should also keep this information off social media and avoid discussing it in public if you fear you may get heated. Your behavior during this time could be used against you if the courts determine that it impacts your ability to parent.
With parental rights comes the obligation to provide financial support to the child. This right exists the moment the child is born and continues until they reach adulthood. Parents cannot contract out of the right to provide support, even if they do want to waive their right to access. If one or more parents consistently fail to provide for their children, the courts can determine that they have effectively abandoned them and may strip the parents of existing parental rights.
How Many Parents Can Have Parental Rights?
Not all families are the same. Family structures are more diverse than they ever were before, which created several legal complications. To bring the courts in line with modern times, legislation was recently enacted requiring the law to recognize three or more legal parents in a child’s life. The intent of this legislation is so custody and financial obligations can be shared among all parties involved in the child’s life. These legislative changes were inspired by same sex couples who choose to have children with an opposite sex individual. In some cases, the other individual may want to remain actively involved in the child’s life, meaning that their parentage must be recognized in addition to that of the same-sex partner. Currently, there is no maximum number of parents who can share rights to a child, leaving the laws open to deal with a variety of family structures and arrangements.
If you are involved in a parental rights dispute where there are more than two parents named on a birth certificate or who have parentage, you should contact a lawyer. Mediation is still the first step for resolution, but it is important to have a lawyer on your side who understands the issues. Unfortunately, some judges and mediators still carry bias about family diversity. These biases may come out in their rulings, impacting your parental rights. Having a lawyer on your side who understands you unique parenting situation is in a better position to ensure your rights are respected.
Most people acquire parental rights by having a child biologically, being named on the child’s birth certificate, or establishing parentage after the child’s birth. There is another way to obtain parental rights over a child: adoption. Adoptive parents must be at least 10 years older than the child they wish to adopt and must have the consent of the child if they are older than 12.
Adoption is a very involved process, requiring a lot of paperwork, forms, and proof that you are a fit parent. Once the process is complete, the adoptive parent or parents have all the parental rights as biological parents. In most cases, the rights of the child’s biological parents have already been terminated before the adoption process begins. If not, make sure that this is underway, as you cannot adopt a child another parent has rights to. It is always a good idea to seek the advice of a lawyer in these matters, to ensure everything is being done in accordance with the law.
Hiring the Right Family Law Attorney
If you are involved in a case involving parental rights, it is important to hire a skilled attorney as soon as possible. The family law system is complex and difficult to navigate for unrepresented clients. Finding a lawyer is particularly important for couples who do not agree on any issues regarding shared children.
Individuals who want to learn more about their parental rights can contact San Diego Family Law Attorney today. They have the skills and experience you need to fight for your rights, both in court and through negotiated settlements. By contacting their offices, you can connect with a lawyer who is compassionate yet tough, eager to ensure that your children’s best interests are respected by the courts and the other party. Contact them today by calling 619-610-7425 to schedule your appointment today.