How Does Child Custody Work With Unmarried Parents in California?

Child custody is a crucial aspect of family law that determines who has the legal right to make decisions about a child’s upbringing and where the child will live.  Like many other states, California has seen a rise in the number of children born to unmarried parents. In 2022, over 38% of births were to unmarried couples.

But how does being unmarried impact child custody arrangements in California compared to married couples?

Understanding the legal framework for child custody in California is essential for unmarried parents seeking to navigate the complexities of custody arrangements. The California Family Code governs child custody matters, providing the guidelines and principles that courts follow to make custody decisions.

It stipulates that the primary concern in any custody decision is the child’s best interest. This principle ensures that the child’s health, safety, and welfare are prioritized above all else.

It is important to note that the Family Code encourages joint custody arrangements whenever possible, as long as it serves the child’s best interests.

Default Custody

In California, the legal term for child custody is ‘legal and physical custody.’ When a child is born to unmarried parents, the law starts with a presumption of sole custody for the mother. This means the mother has both:

  • Legal Custody — The right to make major decisions about the child’s life, such as healthcare, education, well-being, and religious upbringing.
  • Physical Custody — The right to have the child live with them as their primary residence.

However, this automatic default isn’t written in stone. If the biological father takes steps to legally establish himself as the child’s father, this can significantly change the custody arrangement.

Establishing Paternity

The automatic default custody for unmarried mothers can be changed when the father establishes paternity. This is the legal process of proving the biological father-child relationship. There are two main ways unmarried fathers can establish paternity in California:

  • Voluntary Declaration of Paternity (VDP) — This is the simplest method. Both parents can sign a VDP form at the hospital after birth or at any authorized witnessing agency later. This form legally acknowledges the father and grants him parental rights.
  • Genetic Testing — If there is any doubt about paternity, genetic testing is used. The California Child Support Services agency can help facilitate this process.

Establishing paternity is crucial for unmarried fathers who want:

  • Custody Rights — Once paternity is established, fathers can petition the court for joint or sole custody, depending on the circumstances.
  • Visitation — Paternity allows fathers to have legally mandated visitation time with their child(ren).
  • Decision-Making — Fathers gain a say in major decisions about the child’s upbringing.

By taking these steps, unmarried fathers can ensure they have a meaningful role in their child’s life.

Establishing Custody Rights

While establishing paternity doesn’t automatically grant custody rights, it is the crucial first step for unmarried fathers seeking legal involvement in their child’s upbringing.

Here’s how paternity paves the way for custody arrangements:

  • Initiating Custody Proceedings — Once paternity is established, the father gains the legal standing to petition the court for custody by starting a custody and support case to change existing custody arrangements. This can involve seeking joint custody, where both parents share decision-making and living arrangements, or sole custody in specific situations.
  • Focus on the Child’s Best Interest — The court prioritizes the child’s well-being during custody hearings. Judges consider various factors, including each parent’s stability, living situation, and involvement in the child’s life. While not guaranteed, establishing paternity demonstrates the father’s commitment and strengthens his case for shared parenting.

In essence, establishing paternity unlocks the door for unmarried fathers to fight for custody and visitation rights, ensuring they have a significant role in their child’s life.

Custody Arrangements: Finding the Right Fit

Once paternity is established (or the mother has custody), California courts will determine the most suitable custody arrangement for the child’s well-being. Here’s a breakdown of the options:

  • Sole Custody (Legal & Physical) — In this arrangement, one parent is responsible for the child’s upbringing. They make all major decisions, and the child resides with them most of the time. The other parent (non-custodial parent) typically has visitation rights, allowing them to maintain a relationship with the child.
  • Joint Custody — This can be further divided into two categories:
    • Joint Legal Custody — Both parents share the decision-making power regarding the child’s education, healthcare, religious upbringing, and other significant aspects of their life. They work together to ensure the child’s needs are met.
    • Joint Physical Custody — Following a pre-determined schedule, the child splits their time between both parents’ homes. Depending on the specific circumstances and the child’s age, this can be a weekly, bi-weekly, or monthly arrangement.
  • Visitation Rights — Even in sole custody arrangements, the non-custodial parent usually has visitation rights. These rights are outlined in a court order and can include scheduled visits, phone calls, or video chats. The court prioritizes frequent and consistent contact between the child and the non-custodial parent, keeping in mind the child’s best interests.

The specific type of custody arrangement ultimately chosen depends on various factors, including:

  • The parents’ ability to communicate and cooperate effectively.
  • The child’s age and needs.
  • The living situations of both parents.
  • The child’s established relationships with each parent.

Finding the right balance is crucial. Enlisting legal help from a qualified family law attorney can be invaluable in navigating these complexities and ensuring a custody arrangement that prioritizes your child’s well-being and fosters a healthy co-parenting dynamic.

Creating a Custody Agreement

While the court can determine custody arrangements, it is often beneficial for unmarried parents to create a written custody agreement themselves. Here’s why:

  • Avoiding Court Battles — Going to court can be stressful and expensive. A well-crafted agreement reached through negotiation can save time and money.
  • Clarity and Communication — A written document eliminates confusion and ensures both parents are on the same page regarding important details.

What Should Your Custody Agreement Include?

  • Detailed Visitation Schedule — This outlines the specific days and times the child will spend with each parent. Be sure to factor in holidays, birthdays, and school breaks.
  • Decision-Making Process — Clearly define how major decisions regarding the child’s education, healthcare, and religious upbringing will be made. Will it be joint, or will one parent have the final say in certain areas?
  • Child Support — If applicable, the agreement should specify the amount of child support the non-custodial parent will pay to contribute to the child’s expenses. California has child support guidelines that can help determine the appropriate amount.

Enforceability Through Court Approval

While creating a written agreement is a great first step, it is not legally binding. To ensure enforceability, if disagreements arise in the future, you can have your agreement approved by the court. This gives it the weight of a court order, making it legally enforceable.

Consulting with a family law attorney specializing in child custody is highly recommended. They can guide you through the process, help draft a comprehensive agreement, and advise you on the best course of action for your specific situation.

Key Differences Between Custody Laws for Married and Unmarried Parents

While the overarching principles of child custody are similar for both married and unmarried parents, as we have discussed above, there are notable differences in the legal processes and considerations involved. 

Here are the key differences between married and unmarried parents:

Establishing Parental Rights

Parental rights are typically presumed upon the child’s birth for married parents. However, for unmarried parents, particularly fathers, establishing parental rights often requires a legal process.

Unmarried fathers must establish paternity to gain legal rights and responsibilities toward the child. This can be done voluntarily, through a Declaration of Paternity, or court-ordered paternity tests if necessary.

Presumption of Parentage

In the case of married parents, there is a presumption that the husband is the child’s legal father. Unmarried parents do not benefit from this presumption. Therefore, unmarried mothers automatically have custody rights, while unmarried fathers need to take additional steps to assert their parental rights.

Court Procedures

When unmarried parents cannot agree on custody arrangements, they must seek court intervention. The process involves filing a custody petition and attending mediation sessions, where a neutral third party helps parents reach a mutually agreeable arrangement. If mediation fails, the case proceeds to a court hearing, where a judge makes the final custody determination based on the child’s best interests.

Child support obligations are closely linked to custody arrangements. In situations involving unmarried parents, once paternity is established, the court will address both custody and child support matters to ensure the child’s financial needs are met.

The Gorski Firm: Your Trusted Partner in Child Custody Matters

Overall, while the principles guiding child custody decisions are consistent, unmarried parents face additional legal hurdles in establishing and exercising their parental rights. Understanding these differences and the specific legal framework is crucial for unmarried parents to effectively navigate the custody process in California.

Finding the right family law attorney is crucial during this sensitive time. Over the years, we at The Gorski Firm have become a trusted partner for many clients facing child custody issues in Bakersfield, California. Our team of experienced family law attorneys understands the complexities of California family law and is dedicated to achieving positive outcomes for all clients.

Contact Us 

Schedule a consultation today to discuss your situation and explore how we can help you navigate your child custody arrangements with confidence.

Remember, you don’t have to go through this alone.

Written by Vincent A. Gorski

Vincent Gorski is a Bakersfield California Family Law and Bankruptcy lawyer. He is certified by the California Board of Legal Specialization in both Family Law and Bankruptcy. He is the founder of The Gorski Firm and assists clients in complex and routine family law and bankruptcy issues. He was licensed to practice in Indiana in 2007 and California in 2009. He regularly writes on topics related to Bankruptcy and Family Law issues (divorce, custody, visitation, support, property division, etc.)

June 20, 2024

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