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In California, child custody laws for unmarried parents are the same as those for those who are married. Even if you and your child’s other parent were never legally married, you both generally have the same rights, obligations, and privileges when it comes to raising your child.
Significantly, courts do not favor either the mother or the father when evaluating a custody case; a judge will consider the best interests of the child to determine the outcome. However, in some cases, an unmarried father may need to take additional steps to assert his parental rights.
Although both parents have equal custody rights, and the child custody laws for unmarried parents do not go against them, an unmarried father may need to take legal action to gain child custody. When a child is born out of wedlock, custody automatically goes to the mother unless paternity has been established. There is no need for an unmarried mother to take any further steps regarding her custody rights.
Critically, there are two types of custody: physical and legal. Physical custody is where the children live, and legal custody refers to who has decision-making authority. Either type of custody may be “joint” and shared between both parents, regardless of whether they are married. Custody can also be “sole” and belong only to one parent. If a child spends more time with one parent, the other will have visitation rights, also known as parenting time.
Fostering and maintaining a parental relationship is essential for both a father and their child. But to assert child custody rights, a father will need to first prove paternity. While the law presumes paternity when the child’s parents are married, there is no legal presumption regarding paternity for unwed parents.
There are two ways to establish paternity in California. The father can acknowledge that he is the child’s biological father by including his name on the birth certificate. Otherwise, he can petition the court; in these cases, paternity is typically demonstrated through a DNA or genetic test.
Once paternity has legally been established, a father can work with the child’s mother to create a parenting plan and visitation schedule. But in cases where the mother disputes the father’s custody rights, a court will decide the arrangement based on the child’s best interests.
Unlike when parents divorce and child custody must be addressed as part of the legal process, unmarried parents can choose whether they would like to obtain an enforceable custody order from the court. If both parents reach an amicable agreement concerning how they would like to share parenting responsibilities and schedule time with their child, they may think that they don’t need a court order. Nevertheless, it’s always a good idea to ask the court to formalize an agreement, even amicable co-parenting relationships can sometimes become contentious down the road.
A parenting plan should be as detailed as possible to prevent confusion and conflict. It can include details regarding the following:
Importantly, if a parenting plan is not in writing and ordered by a judge, it is not enforceable in court in the event that any of the provisions are disputed at a later time. A legally enforceable parenting plan not only protects the parents’ rights, but it can also help to safeguard the child’s best interests as well.
Courts in California favor joint custody arrangements in which both parents are able to take part in their child’s life. But sometimes this may not be possible. If a mother is unfit, or unable to properly care for the child and their welfare would be in jeopardy, a father may petition a court for sole custody, regardless of whether the parents were married when the child was born.
For instance, if there is a history of child abuse or if the mother has a mental health condition that would affect a child’s safety, a court may determine that it may be best for the father to have sole custody rights. Conversely, if spending time with the father would endanger the child, the mother may dispute a father’s custody petition. While courts rarely prohibit parenting time, a judge may order supervised visitation when it would not be safe for the child to spend time alone with the parent.
If you are an unmarried father, it’s vital to have a skilled family law attorney on your side who can protect your parental rights and guide you through the legal process of obtaining custody. Offering compassionate counsel and experienced advocacy, The Law Offices of Rick D. Banks is committed to achieving a positive outcome for each client.
The Law Offices of Rick D. Banks has been assisting clients throughout Fresno and the surrounding area in their divorce and family law matters for more than 20 years. To schedule a no obligation consultation, call (559)222-4891.