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Everyday Law – Unmarried Father Seeks Custody or Vistation

A common question we have been getting at the reference desk lately is “How does an unmarried father get custody or visitation with his child?” The answer, as any good attorney would tell you, is “it depends.”  Has paternity been established?  If so, how?  By a Voluntary Declaration of Paternity?  Was the mother married to anyone at the time of the birth? How old is the child? Has the Department of Child Support Services (DCSS) opened a Family Support case?  When we ask these questions, it is not because we are being nosy or because we are interested in your personal life (in my case, I won’t even remember your answers fifteen minutes later), it is because we want you to fill out the right set of forms so the court clerk will not reject your paperwork.

There are basically three ways for an unmarried father to ask for custody of or visitation with his child, all with different requirements, advantages, and disadvantages: 1) File a Uniform Parentage Act (UPA) case; 2) File a Petition for Custody or Support; or 3) “Piggyback” on an open DCSS Family Support case.

If paternity has been established, the quickest, easiest way to ask the court for custody or visitation is to “hi-jack” or “piggyback” on an open DCSS Family Support case. Either or both parents can ask their Local Child Support Agency (LCSA) to open a Family Support case. Also, when one parent is on welfare for the children (for example, if they receive Cal-Works or Medi-Cal), the LCSA automatically gets involved and opens a case. There is a $435 “first appearance” filing fee and a $60 fee for filing a “Request for Order” (see http://saccourt.ca.gov/fees/docs/fee-schedule.pdf for a current fee schedule), but you will not have to pay the fees if you qualify for a Fee Waiver. Go to our website at http://www.saclaw.org/pages/fee-waiver.aspx for a Step-by-Step Guide to Filing a Fee Waiver, including sample forms and instructions.  

The advantages of hi-jacking an open Family Support case are that you do not have to file a Summons and Petition and wait 30 days for the other party to respond; the case is not a matter of public record and is therefore confidential; and, if your Family Support case is in Sacramento County, you can get help with completing your papers for only $10 from the Sacramento County Public Law Library Family Law Pilot Project’s Request for Order Workshop. To sign up for the Request for Order workshop, visit our Eventbrite site at www.saclaw.eventbrite.com.

To find out if there is an open Family Support case in Sacramento County, go to www.saccourt.ca.gov, click on “Search our Case Index,” click on “Proceed to the Search System,” select “Family Law” as the Case Type, enter the mother’s name, select a “Start Filing Year” and an “End Filing Year,” and click on “Search.”  A Family Support case will have an “FS” designation in it, for example, “08FS03150.” The case will be titled “County of Sacramento v. [Respondent].” The County of Sacramento is the Petitioner, the Respondent is usually the father, and the mother listed as the “Other Parent.”

Paternity must also be established in order to file a Petition for Custody and Support. The filing fee is $435 unless you qualify for a Fee Waiver. The Sacramento County Family Law Facilitator’s Office has prepared an excellent guide to completing the necessary forms at http://saccourt.ca.gov/family/docs/fl-custody-support-minor-children-packet.pdf. They are also planning to begin free workshops on how to complete the forms soon; check their website at http://www.saccourt.ca.gov/family/self-help-center.aspx#workshops for details.  Petition for Custody and Support cases are court records and therefore open to the public. 

The only way for an unmarried father to obtain custody or visitation if parentage has not been established is to open a Uniform Parentage Act case and establish parentage first. The filing fee is $435 unless you qualify for a Fee Waiver. The Sacramento County Family Law Facilitator has put together a very informative website on UPA cases (http://saccourt.ca.gov/family/upa.aspx), and an excellent guide to completing the necessary forms (http://saccourt.ca.gov/family/docs/fl-upa-packet.pdf). UPA hearings may be closed upon request, and the case records are confidential under California Family Code § 7643. The Facilitator’s Office is also planning to begin free workshops on how to complete UPA forms soon; keep checking their website at http://www.saccourt.ca.gov/family/self-help-center.aspx#workshops.

If the mother was married to someone else at the time of the birth, however, parentage of the unmarried father may be difficult, if impossible, to establish in court. There is a presumption that a child born during a marriage is a child of the marriage, and the husband and wife are the legal parents. If the child is two years old or older, the presumption becomes “conclusive,” which means that it cannot be disproved, even if there is evidence to the contrary. See California Family Code § 7540. You can read more about “establishing parentage” and “disputing parentage” at the California Court’s Self Help website, at http://www.courts.ca.gov/selfhelp-parentage.htm and http://www.courts.ca.gov/1202.htm, respectively.

For more information on family law and many more subjects, visit the Sacramento County Public Law Library, providing free public access to legal information for over 100 years.

By Kelly Browne
Assistant Director for Public Services


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