Parents Who Were Never Married
Parents Who Were Never Married
Parents who are have never married must file what is called a Paternity case. When I tell my new clients this, they almost always say, “But paternity is not an issue, we know he’s the father.” Nonetheless, that is the name they give to cases where the parents were never married. Paternity cases and Divorce cases are different. Paternity cases cannot deal with property or debt of the parties but only deal with the children. If the parents have lived together for a long time and accumulated property together, it is often difficult to divide that property since there is no law that tells us how to do that. I have been successful in most cases in convincing the parties to come up with a fair division of the property that they have accumulated together. Otherwise, they are forced to file a regular civil lawsuit separate from the Paternity action which can be expensive and complicated.
In both Divorce cases and Paternity cases, the court will enter orders about custody, guided by the same law discussed on this site under Children and Custody. One important thing for you to know is that until there is a paternity order that officially declares who the father is and spells out his parenting time, he has no enforceable rights to have time with his child. If the parties are married, they have equal rights to the child and one parent can’t play “keep-away” with the other parent (click here for more about high conflict cases.) That is not the case when the parents have never been married. Our criminal law states that the mother is presumed to be the custodian until there is a specific court order declaring who the father is and spelling out his rights to time with the child. A father can actually be arrested if he refuses to turn the child over to the mother. That’s why it is very important to establish paternity early on in the life of the child, even if the parties are getting along. In fact, establishing paternity while both parties are getting along can make the process fairly easy and inexpensive.
The law takes a different approach to child support in Paternity cases. The court is required to order child support going back in time to three years prior to the filing of the Paternity action. The court will give credit if the father can prove that he’s been voluntarily and consistently paying child support. The court will also give him credit for expenses he has paid on behalf of the child such as for food, clothing and medical bills. Most parents work informally, sometimes for years, before they go to court. Rarely do fathers save their receipts and have sufficient proof of what they have paid. That is another reason why it is very important to get into court to establish paternity, custody, and child support as soon as possible – or at least to be sure you keep track of all the payments you have made if you are the father. It can be very tough on your finances if the court issues an order for three years of back child support, which can easily be in the tens of thousands of dollars.