Though this question may seem straightforward, what legally constitutes an ex who has parental rights has become broader over time. Here are some of the finer details of how the law sees parental rights in different situations.
Scope of Parentage Rights Defined by the Law
When discussing parental rights – the law generally includes these areas in its scope:
- Physical custody and visitation rights
- Legal decision-making rights regarding, for instance, a child’s education, religion, mental/physical health treatment
- The duty of a parent to support a child
- The right to choose a child's place of residence
- Inheritance rights between parents and children
- Immigration rights
- Social Security rights
- Public assistance rights
- The right to a child's earnings
Legitimacy and Parental Rights
In 1975, the California Legislature adopted the Uniform Parentage Act, which basically eliminates the distinction between “legitimate” and “illegitimate” children in terms of parentage rights. Essentially, parents and their biological or adoptive children have a legal relationship that consists of “rights, privileges, duties and obligations.”
This legal relationship exists regardless of whether the couple is married or not. According to the Uniform Parentage Act: "The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.... All children and all parents have equal rights with respect to each other."
Assumed Paternity
Family Code section 7540 states, the "child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." Thus, if a husband and wife are living together when the child is born, the husband is presumed to be the father, even if the wife is having an affair. However, this can be disputed in court with a blood test.
Unmarried Couples and Complications
Since the mid 1990s, hospitals are required to offer a “voluntary declaration of paternity” to any unwed mother and man she identifies as the father. Voluntary declarations of paternity have nearly the same legal weight as a judgment of paternity.
There may be situations where both an ex-boyfriend and an ex-husband may legally have parental rights. For example, if a woman was living with her husband when the child was born, but a boyfriend signed a declaration of paternity, then down the road both the ex-boyfriend and the ex-husband can claim parental rights.
Need to Know More About Parental Rights?
There are further details around assistive reproductive techniques, such as the rights of surrogate mothers and the rights of sperm donors, that come into play.
If you are experiencing a parentage or custody issue and need to know more, contact Park Family Law. Whether you need an experienced mediator to amicably and efficiently settle your case or an aggressive litigator to get you the best result in court, Park Family Law can assist you every step of the way.