For Unmarried Parents, Paternity is Not Automatic

In Family Law, parentage cases, also called "paternity cases," are when the court makes orders to determine who the child's legal parents are.

If parents are married when a child is born, there is usually no question about parentage. This is because the law assumes that married persons are the child's legal parents, so parentage is automatically established in most cases.

For unmarried parents, their children's parentage needs to be legally established.


In some cases, the law may also determine that a child has more than two legal parents.


Establishing parentage means obtaining a court order or signing an official Declaration of Paternity that says who the legal parents of a child are. For example, suppose the parents of a child were not married when the mother became pregnant or when the child was born. In that case, the child does not have a legal father until parentage is established. So even if a father can prove he is the biological father of a child, if he was never married to the mother, he does not legally have any rights or responsibilities for the child. For that, the court must establish parentage legally.


Establishing parentage is necessary before custody, visitation, or child support is ordered by a court. However, you can ask the judge for child support or custody and visitation orders as part of a case establishing the child's parentage.

Suppose a father does not admit he is the parent. In that case, the court may order the alleged father, mother, and child to submit to genetic testing.

Establishing parentage is also necessary for same-sex parenting situations if the parents were not married when the mother became pregnant or when the child was born. For example, if two unmarried women agree to co-parent a child, and the woman who did not give birth to the child wants to be established as a legal parent, she would have to ask the court for an order establishing her parental rights legally. 

The court may order the person trying to establish herself as the "other mother" to prove the couple intended that she be the child's parent. The same would be true of a same-sex relationship where two men planned to be parents. They would have to prove to the court that they intended to be the child's parents and behaved that way.

The laws on parentage can be complicated.  At Law Office James Chau, we are here to help you navigate the process and to understand your options. Please contact us for your 20-minute free consultation to discuss how we can help you with your paternity situation.

The Law Office of James Chau, P.C., represents clients in San Jose, California, and all of the surrounding areas.

For more information and to schedule a personal consultation with the Law Offices of James Chau, P.C., please contact us online or call our San Jose, California office at 669-301-0807.

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