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Separation of non-married couple when paternity has not been established, what rights do each parents have?

Los Angeles, CA |

Going through a separation , child's father and myself are not married and he is not on the birth certificate ( so no paternity established ) . We used a MFR as a mediator , but could not come to an agreement . Father wants to reside full time in the home caring for his son until the child is 18 ( he has been the care provider , as I have been the working mom ) or is demanding full custody if asked to leave the house ( and has stated he would take my son if I removed him from the home ) . - Does he have any legal rights if paternity has not been established ? - In what circumstances could he actually take my son from me ? - Do I need a lawyer to represent me in any way , or are these unsubstantiated threats ?

Attorney Answers 3


  1. Best answer

    I agree with my colleague. Unless the father files a petition to establish paternity and a motion for custody/visitation, he has no legal rights of any kind. For practical purposes, he has no say about anything regarding the minor child. So, in answer to your questoin, father has no custody rights of any kind if paternity is not esablished.

    The only circumstance that father could ATTEMPT to take your son from you is he not only filed a petition to establish paternity and a motion for custody and visitation but also convinced a judge that it was in your son's best interests to say with him. Just because he's not working and wishes to stay at home is not a sufficient basis for a court to grant him sole legal or sole physical custody. In fact, the court would require that BOTH parents work--as both parents have a legal duty to support a minor child. While you may have agreed to have Father stay home when you lived together, all bets are now off because you are now separating.

    Unless he files a motion, there is no "need" for you to hire an attorney. Technically speaking, you are allowed to leave with your son TODAY and Father has no say--as he has no legal rights as of today! Ponder that thought.

    Should Father hire an attorney and therafter file a paternity action, then it is strongly recommended that you hire an attorney. If finances are an issue, there are many California attorneys willing to offer coaching services. In a coaching session, you do all the work, but the attorney provides you assistance through every part of the process, e.g. your coach. Such legal services are much less as compared to full legal representation.

    Good luck!

    PLEASE READ--before emailing, commenting or calling: As a rule, I do not respond to "comments" that are designed as follow-up questions to the originally-posted question. I specifically do this as to avoid creating any confusion to the originating author of the question and to prevent any attorney-client relationship from forming--as this is not the goal or intent of this attorney or the Avvo creators. Further, I am only licensed to practice law in the State of California; therefore, any information provided in this answer is intended for application in California. Second, the information provided in this answer is solely intended to serve as GENERAL INFORMATION, and, at most, to serve as a catalyst for discussion between you and an attorney. Under no circumstance, is this information provided in this "Answer" intended to be construed as legal advice--and is not to be considered legal advice for any purpose. If you wish legal advice, then it is recommended that you contact a licensed attorney in your area to discuss the particulars of your case. Only by engaging in a meaningful discussion with a licensed attorney, can an attorney then provide you with legal advice.


  2. File a paternity action and have paternity established. Get orders regarding custody, visitation and support. In the absence of any orders, he does not have legal rights. If you want to get control over the situation, hire an attorney and file a paternity action.


  3. I agree with the previous statements regarding the need for a paternity action. These types of proceedings can be emotionally overwhelming. It would be smart to talk to an attorney in helping you proceed and figure out the strategic means of helping you with your circumstances.

    This response is not intended, nor should it be construed as legal advice. Any information provided is for educational purposes only. The exchange of communications through Avvo.com and similar social media does not establish an attorney-client relationship with me or my office. To schedule an appointment for an attorney-client privileged consultation, contact me at 909-860-0342. Thank you.

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