Hi, Flora, and Welcome to JustAnswer, My name is XXXXX XXXXX my goal is to provide you with Excellent Service
Thank you for your question,
1. How old is the child ?
2. Has the father ever had any relationship with your son ?
3. Has a Petition to Establish Paternity been filed or has paternity been established in any other way (other than the father's name appearing on the Birth Certificate) ?
Thank you and I look forward to your reply,
Thank you so much for your speedy response.
1. I have two sons with him, one is 5 and the other one is just 7 months.
2. My sons birth certificates have his father's name on it.
3. No petition yet.
I expect to hearing from you soon. Thanks a lot.
One last question, please, if you do not mind,
Did the father sign a Voluntary Declaration of Paternity ?
No, just only with his name on birth certificates. This is the only thing that shows the relationship.
I have one most important question of all. Since now both children are under his father's surname, so can I change their surname to mine instead of his father? How can I totally expel his father's identity and surname..... and custody?
Hi again, Flora, Thank you for your additional information,
Under California law, an unmarried father's name on a Birth Certificate, without more, does not confer any custody rights on the father. California law presumes the mother has sole custody where the parents of a child are not married, unless the biological father has signed a Voluntary Declaration of Paternity. Signing a Voluntary Declaration of Paternity has the same force and legal effect as a judicial determination of paternity.
Since you stated that you and the father of your children were never married, and he has not signed a Voluntary Declaration of Paternity, he does not have any custody rights, even though his name appears on the Birth Certificate. Under California law, you have sole custody of both children. If the father wants to play a role in the lives of your children and wants to have custody or visitation rights, he must first file a Petition to Establish Paternity. In these proceedings the Judge Orders DNA testing of both the father and the children, and if paternity is established, the law gives him the right to file a Petition for Custody.
If you want the father out of the children's life, there are two ways that you can accomplish this. First, if the father is willing to sign an "Affidavit of Voluntary Relinquishment of Parental Rights", he would be giving up all right to your children and there would no longer be a legal "parent-child" relationship..
The second way to accomplish this comes into play where the father is not willing to sign the Affidavit of Voluntary Relinquishment of Parental Rights. You would be required to file a "Petition for Involuntary Termination of Parental Rights", but California law will grant this Petition only if there is another man in the picture who will adopt the children. Only then will the Judge sign an Order Terminating the Parental rights of the father. The reason behind this is that they want to assure that there will be two parents responsible for the financial support of the child.
In the unlikely event that the father decides to file a Petition for Custody, he would first file a Petition to Establish Paternity, and then file a Petition for Custody, but I do not think that you would have anything to worry about because in determining the question of custody, California Family Court Judges, like the Family Court Judges in the other 49 States, are guided by the same principle and that is "What will be in the best interests of the child", and then consider several other factors in making the decision of custody. These factors include, but are not limited to, taking into consideration: :
1. Which parent will provide the more stable, secure, and loving home;
2. Which parent has been the primary caretaker of the child;
3. Has the parent who is seeking custody played a major role in the child's life;
4. Which parent will spend more time with the child;
5. Has either parent ever been in jail;
6. Has either parent ever been involved in illegal drugs;
7. Which parent will be a better role model;
8. Maintaining the child's ties with friends, school, and the community - Family court Judges are very reluctant to uproot a child from his familiar surroundings;
9. Does either parent have a history of violence, etc.
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If his father is unwilling to sign an "Affidavit of Voluntary Relinquishment of Parental Rights", will their "parent-child" relationship still exist legally? And under this situation, if he did not sign that, can I still change the surname for my son under mine?
Hi Andrea, sorry to bother you again. As my situation now is very urgent, I really want your valuable advice before I settle everything with his father.
I just checked the documents. As for my first son, since his father has added his name on the birth certificate when he was nearly 3, I think he has signed the Declaration of Paternity also by that time. As for my second son, I am not sure whether his father has signed the Declaration of Paternity in hospital. ......... If yes to both sons, how does the situation be different? .... and what else I can do? Do I maintain the sole custody position as a Mom still? Thank you.
The "Parent-child" relationship will continue to exist, even though he will not have a right to custody because he will still have the right to file a Petition fo Establish Paternity and then to file a Petition for Custody. Although I am sure that it would be highly unlikely that a Court would award him custody, the Court would likely give him visitation rights because the law encourages parent-child relationships; studies have shown that children who have a relationship with both parents grow up feeling more loved, more secure, and more confident.
I wish I could give you all the Answers you want to hear, but on the name change, please forgive me, but I cannot. Although he will not have a right to custody, you would not be able to remove his name from the Birth Certificate. That can only be done when the "Parent-Child" relationship is legally dissolved either by his signing an Affidavit of Voluntary Relinquishment of Parental Rights, or by filing a Petition for Involuntary Termination of Parental Rights,
I wish I could give you the Answer you were hoping for, and it would have given me great pleasure to do so, but I have an ethical obligation to you to give you only correct Answers, so I am respectfully XXXXX XXXXX you not hold the law applicable to your situation against me.
Flora, I will return in a moment, My computer has a mind of its own and it is telling me that it is going to "Restart" in 2 minutes which means it turns itself off and starts up again, I have no idea why it does this. I will be right back to Answer your last question,
OK, no problem. I will wait for you.
Hi, Flora, I am back, Thank you for your kind patience,
You asked, "If yes to both sons, how does the situation be different? .... and what else I can do? Do I maintain the sole custody position as a Mom still? "
If the father signed a Declaration of Paternity, then under California Law, the difference is that paternity is established and the father would not have to file a Petition to Establish Paternity if he was seeking custody, he could simply file a Petition for Custody. But, until he files a Petition for Custody, you have sole custody of both your children,
Please be kind enough to rate my service to you as "Excellent Service",
Bonus and Positive Feedback are greatly appreciated,
Thank you for allowing me the opportunity to assist you,
So, you mean even if he has signed the Declaration of Paternity, I can still have the sole custody right over the children now, and he doesn't, because we are unmarried. Am I right? ........So, what does the Declaration of Paternity stand for? ........ does it stand for he being the father, needs to take care the living of the children? or else??
Signing a Voluntary Declaration of Paternity has the same force and legal effect as a judicial determination of paternity. You still have sole custody, but because he signed the Voluntary Declaration of Paternity, he can go straight to filing a Petition for Custody without first filing a Petition to Establish Custody since signing the Declaration established paternity.
You can file a Complaint for Child Support since paternity has been established,
Thank you Andrea. So, as according to what you said, the situation to me now is favorable, since on the other hand, I have the sole custody right over both of my children; and on the other hand, since he has signed the Declaration of Paternity, his father needs to support the children's living expenses. Am I right?
I have one more question. He has other 4 children with his ex-wife, but has divored. How much level of child support he needs to be responsible for my 2 sons? Since he has signed the Declaration of Paternity, does he mean that all 6 children including my 2 sons, will be being cared and to be supported on equal basis. That means he must support my 2 sons which is on same equal basis with his 4 children?
If you file a Complaint for Child Support, the Court will calculate the child support amount based on the father's income and take into account that there are 6 children for which he has a legal obligation of support, and divide the child support among all of the 6 children,
Thank you Andrea. So, as according to what you said, the situation to me now is favorable, since on the one hand, I have the sole custody right over both of my children; and on the other hand, since he has signed the Declaration of Paternity, his father needs to support the children's living expenses. Am I right?
Hi, Flora, That is correct. But don't forget, he can also file for visitation rights, But, yes, you have sole custody of both your children,
I wish you the very best, XXXXX XXXXX have any firther questions or concerns, or you have questions in the future, please feel free to ask for my by typing my name at the beginning of your question, like this
"For Andrea only .........."
Thank you again for the opportunity to be of assistance,
OK, got it, thank you so so so much Andrea.
Your help is too great to me. You made me know what to do and how to do..... Thank you so much!!!!
Please don't mind if I need to bother you again if I have further questions. Thank you. You job is excellent!!!
For Andrea only ............
Andrea, what to do if he refused to support the children on equal basis with his other 4 children?
The decision is not his to make. The father will have to fill out a form showing his income and all his financial information. He will hand it up to the Support Master hearing the case. The Support Master calculates the amount of Child Support in accordance with the California Support Guidelines for 6 children. And the child support amount is what it is. The father cannot really say anything. Whatever amount the Support Guidelines provide for 6 children at his income level will be the amount that will be put in the Court Order for Child Support.
Your answer is perfect!! Thank you very much again.
You are very Welcome !
For Andrea only...
Hello Andrea, it is Flora again. I want to ask one more question. Since my home country is in Hong Kong but my sons were born here in US, if I bring them back to Hong Kong for living in the future, how does the living support for the 2 sons will be affected? ......... will it still be controlled under US rules, as they were born here in US?
Good afternoon, Flora,
You will be filing for Child Support in the California Superior Court Family Court Division in the County of your residence. The California Court will retain jurisdiction of the Child Support case,
For Andrea only....
So, do you mean that once I file Child Support to the Court, then, no matter I live in US or I move to Hong Kong, then all his responsiblity or action will be bound by the Court? Am I right?
And, you would have to file a Complaint for Child Support in California so that the court has personal jurisdiction over him. If you were to file in another State, or another country, the Court of that State or that country would not have personal jurisdiction over him and could not compel him to do anything,
Good Morning, Flora,
Thank you for your questions, and I would like to continue to Answer all your questions and address all your concerns, but we will have to treat these questions as new questions because according to the rules of this website, the deposit that the customer places with JustAnswer is to post their question, then receive an Answer from an Expert and if there is something in the Answer which the customer does not understand, the customer can ask for an explanation by asking a follow up question at no additional charge. Even though additional questions are on the same subject, they are considered new questions for which the customer should rate the Expert's service. I realize that many customers who are new to the website may not have read the Terms of Service and do not yet know exactly how it works. I understand completely how it might be confusing to a new customer, so that is why I am explaining it to you and I do not want to get into trouble with the website for not following their rules. I hope you can understand my position because I do not make the rules, but I must follow them. Therefore, I am asking if you are in agreement that these questions which you are asking now are considered new questions for which you would rate the Expert's service to you by providing Answers to these questions for you. Kindly let me know if you are in agreement.
Thank you so much for understanding, Flora, I appreciate it. I can Answer your new questions here, and you can rate my service here without a problem, Okay ?
1. " If his father intends to file the Petition for Custody, will it be easy for him to win under my case as an unmarked mom? And under what circumstances will the Court grant him the custody right? "
Before the new laws were enacted, the Family Court Judges followed the "Tender years Doctrine". This legal principle was applied in custody cases where the children were very young and the Courts felt that young children of "tender years" should not be separated from their mother. This resulted in the Judges almost always and almost automatically awarded custody of very young children to the mother. I am a mother of two girls and I agree completely with this Doctrine. However, nobody asked my opinion when the Legislatures of each State slowly amended their laws to give fathers an equal right to custody. The changes in the law actually came about because of the Women's movement for equal rights. So, as women gained equal rights with men, those men who were involved in custody fights began screaming for equal rights as fathers. The men screamed so loud that today, the husband in divorce proceedings has the same right to demand alimony if the wife is earning more income. These cases went all the way up to the United States Supreme Court which held that husbands were being discriminated against because of their gender and they had an equal right to demand alimony.
Today if the parents of children are married and they get a divorce, both parents have an equal right to custody. They do not have to prove paternity because there is a legal presumption that a child born during the marriage is the child of both the mother and her husband and if the mother had an affair during the marriage, her husband would have to file a Petition to disprove paternity in order to be free of the obligation to pay child support for a child to whom he was not the biological father.
In the case of unmarried parents of a child, the mother is presumed to have sole custody of the child (or children) until the biological father establishes that he is the father. Once the biological father establishes paternity, whether by signing a Voluntary Declaration of Paternity, or by filing a Petition to Establish Paternity through DNA testing, he then has an equal right to custody.
However, having an "equal right to custody" does not mean that the Court will award 50-50 custody. The same rule is true even where the parents were married and even though the married parents who are divorcing have an equal right to custody does not mean that the result of custody proceedings will be an award of equal custody. The Family Court Judges are still guided by the same principle in custody decisions - The award of custody is based on what will be "In the best interests of the child". Studies have shown that children feel more loved and will grow up to be more stable and confident adults, if they have an established relationship with both parents. A Judge is more likely to award custody to the parent who encourages a relationship between the child and the other parent, rather than to the parent who speaks against the other parent and tries to maintain a distance between the child and the other parent.
In Answer to your question, even though the father might want to establish paternity so that he can have some rights to your children, I do not believe for a minute that he would be awarded custody, or even shared, equal (50-50) custody because a Judge must still decide the question of "What will be in the best interests of the child, or children, and in doing so, he must take into account the factors which I listed in one of my Answers at the very beginning. I will list them here again so that you do not have to search for them. I had stated the following which I am re-printing below. I do not nbelieve there are any conditions under which the father would be awarded even shared, equal custody, so I do not believe that is something that you should be worried about at all.: Here is what I had stated:
"These factors include, but are not limited to, taking into consideration: :
9. Does either parent have a history of violence, etc. "
You also asked,
2. "You mentioned that unmarried mom like me have sole custody right over my children, unless his father files the Petition for Custody and win. ...So, for married couples, can I say that both of the couple is having the joint custody rights in 50:50? Am I right? "
An unmarried father who has established paternity, will have an equal right to custody as the mother, in the same way that a father who is married to the mother has an equal right to custody. The only difference is that he does not have to establish paternity if the child was born during the marriage. But, please keep in mind what I said before, just because a father has an equal right to custody, does not mean that he will be awarded 50-50, shared, equal custody. In most cases when the Family Court Judge considers all the factors, he finds that the best interests of the child (or children) will be served by awarding primary physical custody to the mother because she has been the primary caretaker of the children, and the Judges are very reluctant to uproot the child from his mother, his home, his familiar surroundings, his friends, his classmates, his community, and everything else familiar to the child just to give the other parent equal custody as the mother has. Family Court Judges more often award primary physical custody of the children to the mother, and award partial physical custody to the father which can be two weekends out of the month, or every weekend. Holidays are alternated each year. For example, if the mother has the children for Christmas this year, the father will have the children for Christmas next year.
Judges will usually award both parents equal legal custody. "Legal" custody is the right of a parent to participate in making important decisions in the lives of the children, such as education, choosing schools, religion, participating in making decisions on major medical issues (except, of course, in emergency situations where the primary custodial parent can make a decision in an emergency situation, rather than have to wait until she finds the father).
Flora, if you are planning to take the children out of the United States and to live in another country, you should do it now because if the father wants to fight you on the custody issue, even if the Court awards him visitation every other weekend, he will be able to Petition the Family Court and ask the Judge to issue an Injunction against you and prohibit you from taking the children to live outside the United States by telling the Court that if you are permitted to take the children outside the United States, he will not be able to exercise his visitation rights. You have not said whether or not he wants visitation rights, but I thought it was important that I tell you that he might be able to prevent you from leaving the United States with the children,
Good Evening, Flora, it is good to hear from you again. Do not worry about asking questions, I want you to understand your rights to your children completely and also to understand what the father can and cannot do, so that you can protect your children. I am a mother of two daughters, so I can understand how you feel.
My Answers to your questions were based on the fact that in your reply of 4/14/2013, 5:24 PM, you stated that the father had signed a Declaration of Paternity. By signing this, he admits that he is the father and has the legal obligation to pay child support. However, if he wants partial custody or even visitation, he would still have to file a "Complaint for Custody". He does not have custody or visitation automatically. In other words, he cannot come and take the children simply because he filed a Declaration of Paternity.
Q. Do both of your children have US Passports ?
Flora, I am not annoyed at all, Whatever gave you that impression ? In fact, that is why I told you in my previous Answer,
"Do not worry about asking questions, I want you to understand your rights to your children completely and also to understand what the father can and cannot do, so that you can protect your children. I am a mother of two daughters, so I can understand how you feel."
You are correct that you have 100% sole custody of the children because the father has not filed for custody or visitation and it appears now that you are not sure if he signed a Declaration of Paternity.
Hopefully, you will not have to argue with him. One important thing you should know is that support proceedings are separate from custody proceedings and these issues are not heard together at the same hearing. Therefore, when you file a Complaint for Child Support, he cannot raise the issue that he does not see the children, or you do not let him see the children, or whatever else he wants to say - The Support Master hearing the child support case should inform him that the custody issue is "Not before the Court at this time" and also that custody issues are not heard by Support Masters. Therefore, he cannot claim anything relating to custody or visitation at any Support hearing you have.
I am glad that both children have their US Passports because if you tried to get passports for them while the father was awarded visitation or partial custody, you would have needed his signature on their application in order to get US Passports for the children,
1. Regarding US Passports - If you have an Order of the Court awarding you sole custody, you do not need the father's signature to renew the children's US Passport;
2. Filing for Child Support - You do not need a lawyer. Go to the Superior Court, Family Court Division in your County. They have all the forms you need and they also have a "Self-Help" desk with personnel who can help you fill out the forms. You will have to have to show that he is the biological father, so it would be a good idea for you to look for the Declaration of Paternity. If he signed this, you probably would have it together with the children's Birth Certificates;
3. You would have to wait several weeks for a hearing, depending on how full the Court's calendar is. The father would also have to be served and he would be required to furnish his financial information so that the amount of child support can be calculated.
For Andrea only......
Sorry, I have fell into sleep last night.......
As related to the above (1), regarding the passport issue, how can I get the Order of the Court awarding me the sole custody. How to do?
As related to the above (2), regarding the Filing for Child Support, do I need to make an appointment if I go to the Superior Court?
Andrea, one more question other than the above, how can I demand him to buy us a house for living for our future? He is rich, but may not be willing to do so. But I can tell you, I lost everything because of him. I have very good prospect, career, ...... etc., but now nothing because of him, and he never consider us. I have very good educational level, with 2 masters degrees. I was a banker when I knew him. I lend his company US$3 million when I was a banker, but he never say thank you to me, and even now, he just treats me as a maid and driver to everyday serve his family, not even to say a thank you. I scarifice everything to be with him, but what I get in return is unhappiness and not being respect. He just squeeze me, squeeze what I had to help him, never in return consider me and my two sons. He never consider how to safeguard and protect our life in future. Never. I know it is my personal thing, somehow not related to legal questions, but as a woman and from a woman's point of view, can you give me something concrete or practical that I should think to protect myself and my two sons in the future? ....anything that I have neglect? ........ You are so experienced in handling such cases and I am sure you have encountered many similar cases as mine. I would be very much grateful if you can give me some valuable advice that I may have neglected. Thank you very much Andrea.
Hi, Flora, Thank you once again for the "Excellent Service" rating and the Bonus, it was most kind and generous of you and I want you to know that I appreciate it greatly,
I am glad to see that you fell asleep, I was going to ask you if you ever sleep because you are awake at all hours of the day and night :)
1. "how can I get the Order of the Court awarding me the sole custody. How to do?
In order to get a Custody Order awarding you custody and signed by a Judge, you must file a Complaint for Custody, the father must be served with a copy, and the Court will set a hearing date. How quickly your case can be heard depends on how busy the Court is and how full the Court calendar is, but it is usually several weeks, about 8 weeks or so. You would go to the Superior Court, Family Court Division in the County in which you reside. The Family court has a "Self-Help" desk to help any party who wants to do it themselves without using an Attorney. One of the Petitions you would file is a Petition for Custody and Support. Although it says "Support" it is basically for custody. Here is the link to that form" -
You could avoid this if the father will agree to sign a Custody Agreement. You would get an Attorney who would prepare the Custody Agreement and it would set forth your rights and the father's rights. The Agreement can award you sole physical custody of your children and when it is signed by you and the father and your signatures are Notarized, it would have the same effect as a Custody Order signed by the Judge. This Agreement can include anything the parties wish to include, as I discuss in Number 3, below, such as support, agreement by the father to pay for private schools and then their college tuition, and anything else that is for the benefit of the children
You also asked,
2. "... regarding the Filing for Child Support, do I need to make an appointment if I go to the Superior Court?"
You do not need an appointment. You would just go to the Superior Court, Family Court Division and go to their "Self-Help" Desk, the same place you would go for the custody issue which I described above;
Lastly, you asked,
3. "...one more question other than the above, how can I demand him to buy us a house for living for our future? .........."
Flora, believe me, I know how you feel and I understand your concerns for your children, however, this is something which the Courts will not do. Even if you and the father were married and you were now being divorced, the court still would not Order the father to buy a house for the children to live in, regardless of how rich he is. The law imposes on him only the obligation of child support. up to the age of 18.
I am sure that you did a lot for him and his family, but unfortunately, the law does not take this into account. I do not think it is fair and I do not think it is right, and I believe that a father has an obligation ti support his children much greater than that imposed by the law. If a father has the finances, he should provide a home for his children so that they will always have a roof over their heads, but again, this is not what the law provides and it is truly unfortunate. And, as I previously stated, this has nothing to do with whether or not the parents were married.
Things that you can demand and which the court recognizes is Ordering the father to pay for college tuition, room and board and everything else associated with a child's college education. This would be included in the Child Support Order so that you do not have the hassle of going back to Court when the children are of college age.
You can also ask the Judge to include in the Child Support Order is the requirement that the father maintain a life insurance policy at least in the amount of $1,000,000, so that if anything happens to him, the children would not suffer financially and they will be well taken care of by the life insurance proceeds.
In addition, if the father has an increase in salary, or the needs of the children increase, you can file a "Petition to Modify Child Support" based on a "substantial change in circumstances". The law requires that the change be "substantial" so that custodial parents do not file Petitions to Modify Child Support just because the payor received a $10 a week raise in salary.
You might succeed in having the father enter into a Custody and Child Support Agreement because individuals with high incomes do not like to disclose all their financial information to the Court in these situations, so they prefer to come to an out of Court Agreement with the custodial parent, thereby avoiding disclosing their income, asset, and other financial information,
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