Custody Concerns for Unmarried Parents

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When you separate from your spouse or partner, and there is a child involved, custody is often one of the thorniest issues to resolve—complex, emotionally loaded, and time-consuming.

In every case, when the court is deciding custody, there are many factors to consider, but the question of what is in the child’s best interest must outweigh all else.

However, there are essential distinctions in a custody case in which the parents are not married, and the relevant laws vary considerably from state to state.

The first thing to know is that under California family law, an unmarried mother automatically gets full custody—both legal and physical—of her child from birth. An unwed birth mother does not need to take any legal action to establish custody when not in a relationship with the father of her child or when separating. In addition to the child living with her, the mother has all authority to decide crucial aspects of the child’s upbringing: childcare and education, religion, healthcare/medical treatment, and where to reside, including the choice to relocate.

A biological father, by contrast, does not have automatic custody rights, physical or legal, when he is not married to the mother of the child, even if he is named on the birth certificate. While this may feel disconcerting or unfair, it does not mean that a father cannot or will not gain those rights.

The critical factor is whether paternity has been legally established.

Although being named on the birth certificate is not sufficient legal proof of biological fatherhood, the mother and father can sign an official declaration, called a voluntary acknowledgment of paternity. When both parents agree, this is a relatively simple process that can be done at the hospital when the child is born or completed later and filed with the appropriate state office.

When paternity is legally established, the father has the right to influence significant decisions regarding the child’s upbringing and wellbeing, including relocation. Although it’s essential to understand that establishing paternity does not, on its own, change custody—it remains with the mother until/unless the unmarried parents seek formal custody and visitation arrangements through legal proceedings.

Typically, in straightforward cases, the court will find that some form of joint custody serves the child’s best interests—allowing both parents to have a meaningful relationship with the child and play a significant role in raising and supporting them.

But it’s also important to note that while, without established paternity, a father does not have legal rights to a child, neither does he have legal responsibilities. Therefore, the mother is not automatically entitled to child support from the father, even if he contributed financially for a time, or made an oral commitment to do so, is not legally bound to pay. After paternity is established, a court order that decides custody can also deal with support issues.

There are some exceptions. According to California family law, if parents are registered domestic partners when a child is born, the law assumes that the partners are the child’s parents. However, the law also states, “Establishing parentage is…necessary for same-sex parenting situations if the parents were not married when the mother became pregnant or when the child was born.” Further, in cases where the father or mother contests paternity, “the court may order the alleged father, mother, and child to submit to genetic testing.” And in certain situations, if it can be proven to the court that the mother is unfit to care for the child, an unmarried father may legally have custody removed from her.

Suppose you are an unmarried parent in the process of establishing paternity, making custody arrangements, or seeking to resolve a dispute. In that case, you need expert counsel to manage the particulars of your case. The veteran family law attorneys at SFLG are experienced in all areas of custody law and can help you navigate the complexities of your situation.

by Debra Schoenberg

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