Posted by Gurjit Srai In Uncategorized December 1, 2021 0 Comment

The first question to ask when one parent seeks legal help because the other parent is withholding their child is whether there is a custody order in place. This is an important point because if there is a current custody order, then when a mother withholds a child from the father, she is likely violating the court order. There are several legal steps the father can take to enforce or modify the custody court order.

If there is no court order, the withholding parent is not violating any court order by refusing the other parent to see the child. However, in such cases, the father may still have some options under California law.

Who Has Custody of a Child When There is No Court Order?

Under California Family Code § 3010, both legal parents are equally entitled to custody of their child if there is no order in place to state otherwise. The important piece of this picture is that this code section only applies to legal parents.

California law does not require mothers to take any action to establish their right to their child. However, the law is different for fathers. Fathers are required under the law to establish their parental rights. The reason for this is that a father who is not married to the mother when the child is born is not automatically the legal father of the child.

Other than the biological mother, person who could possibly be a parent to a child are categorized in three different groups:

  • Alleged parents – a father is an alleged father if the biological mother has told someone that he is the father
  • Biological parents – DNA test has been done and proves the father is a biological parent
  • Presumed parents – a father can qualify as a presumed parent in different ways, including:
    • Being named on the child’s birth certificate
    • Acted and raised the child as though they are his won 

As soon as the father is able to legally establish his rights to his child, he has equal rights to the child, even if there is no court order.

What Can Fathers Do to Protect Parental & Custodial Rights

There are steps you can take as a father, or if you believe you are your child’s father, to protect your parents and custodial rights. Some common examples include:

  • Sign a Voluntary Declaration of Paternity and file it with the Department of Child Support Services through the Parentage Opportunity Program. 
  • File a Petition to Establish Parental Relationship in family court.
  • Request a DNA test to prove that you are your child’s father. You can do this via a court order or agreement with the mother.

Call an Experienced Central Valley Divorce Attorney

If you are dealing with a child custody issue, it is important that you have a knowledgeable attorney fighting for your rights. For more information or to schedule a complimentary consultation with a Central Valley divorce attorney, please call Gurjit Srai (209) 323-5558 or complete our online form.