Custody Laws for Unmarried Parents:
What You Need to Know
The presumption with married parents is that the spouses are the parents and each has equal rights to child custody in the event of divorce.
For unmarried couples with children, many of the custody laws in California are the same with a few important differences—and each parent should understand their legal rights and obligations when family decisions and arrangements are made for separation.
As with marriages, the best interests of the children are considered paramount in all child custody decisions.
How is child custody defined in California?
Child custody refers to the legal rights and responsibilities of parents or guardians to care for, protect, and raise a child in the best way possible.
Child custody may refer to legal custody, which is the right to make decisions on behalf of the child, or physical custody, which is the right and duty to house, provide, and care for the child.
With legal custody, decisions about education, religion, and medical treatment are some of the most essential. Physical custody refers more to the practical, day-to-day living arrangements for the child and how to meet the basic needs of food, shelter, and protection.
In California, child custody decisions are made according to the best interests of the child and the child’s age, health, and emotional well-being, as well as the ability of each parent to provide for the child’s needs are considered.
Unless there are compelling reasons to award custody to one parent only, joint legal custody is the preferred option in California, meaning that both parents share the decision-making responsibilities for the child.
Physical custody is often also joint or shared if the child spends approximately equal time with both parents. The main factor in determining this type of custody is which custody arrangement provides the most stable home environment for raising the child.
Parenting arrangements are essential to most custody arrangements, whereby the parent with whom the child does not normally live enjoys visitation rights, e.g., on evenings, weekends, holidays, etc.
Unmarried parents’ rights in California
In California, some important differences apply to unmarried parents when it comes to child custody and visitation.
When a child is born to an unmarried mother in California, she is automatically granted full custody (legal and physical). This means that the unmarried mother is responsible for making all decisions about the child’s care and can determine if and when the child can see the father.
This applies until the child reaches the legal age of majority (18) unless the couple establishes paternity or the mother is deemed an unfit parent (in which case, she may lose full custody).
Unlike married fathers, unmarried fathers are not considered to have established paternity of a child simply by being the partner of the mother—and therefore have no custody or visitation rights. Obtaining parental rights is not quite as straightforward as it is for the mother.
The father must establish legal paternity, after which he will normally have the right to share in decision-making for the child. After separation from the mother, parental and visitation rights may continue and the father will also have the responsibility to pay child support.
Establishing paternity in California
Paternity can be established in one of three ways in California:
- A Voluntary Declaration of Paternity: the unmarried father and mother both sign a voluntary declaration that they’re the child’s biological parents and have it notarized or signed at the local child support agency, welfare offices, superior courts in the presence of a family law facilitator or the registrar of births office.
- A Court-Ordered Paternity Test: the court may order genetic testing or a DNA test if an unmarried father and mother disagree about paternity or need to identify the biological father.
- Action by the Local Child Support Agencies (LCSA): The unmarried father can ask the LCSA office to open a parentage and support case if there’s a dispute over the child’s parentage.
It should be noted that a child’s legal father and biological father are often the same person but that’s not always the case. A legal father is a person to whom a court granted paternity. This can happen without DNA evidence.
What happens in child custody cases with unmarried parents?
If paternity or child custody is disputed in California, unmarried fathers may need to establish paternity and appeal to the court for custody rights.
A petition for child custody will initiate a child custody hearing at which the court will hear the appeal from both parties before deciding how the child’s welfare and well-being can best be protected.
Both unmarried parents may hire family lawyers to manage this process. Unmarried mothers are generally expected to get automatic full custody but this may not be the case if the mother fails to demonstrate the capacity to take care of the child and perform her legal parental responsibilities.
If paternity is proven by a test, the father then has equal custodial rights and will usually be expected to pay child support.
Types of child custody for unmarried parents in California
The options for the California family courts when awarding custody in unmarried parent cases are as follows:
For sole physical custody to be awarded to either parent, it must be proven that the other parent is unfit to care for the child’s best interests or, in the case of a father, that he has not established paternity.
Child Support in California
Whether married or unmarried, parents have a legal duty to provide for their children’s financial needs at least until the age of 18—unless their parental rights have been removed, which is rare.
The amount of child support payable is based on the needs of the child and the ability of the parents to support their children financially.
If paternity has not been established and there is no legal father established, no child support will be legally payable. However, even if a parent does not have legal or physical custody of the child, he may still be required to pay child support if he is the legal father.
If you are an unmarried parent with a child custody issue, the family attorneys at The Sands Law Group APLC can help. Contact us or call 213-788-4412 today for a free 15-minute phone consultation about your case.
