When married parents decide to separate, child custody is one of the most crucial considerations throughout divorce proceedings. But who has custody of a child when the parents are not married? This question is so important and can cause a significant amount of stress in an already challenging process. It’s important both parents fully understand the process used to determine custody and what important decisions mean for their family in the future.
If you’re currently going through a separation — or considering one in the near future — this post outlines what you should expect in terms of child custody. We’ll answer the most common questions we get about child custody for unmarried couples. This includes the different types of custody arrangement available, the process by which they’re determined, and the strategies you can use to reach an amicable agreement that benefits everyone, parents and children alike. Equipped with this knowledge, we’re confident you will be able to reach an agreement in the best interests of your child. Let’s get started:
What Is Child Custody?
Before we discuss California’s custody rights, it’s important to understand what child custody entails. In simple terms, the person awarded custody of the child is legally responsible for their care and upbringing. However, there are two types of custody that fall within this definition.
The first is legal custody, which determines who is responsible for making important decisions about the child’s care, such as those relating to healthcare and education. The second, physical custody, relates to who the child lives with.
Both types of custody may be awarded to the same parent, but this isn’t always the case. This depends on the type of custody agreement arranged during the separation.
What Are the Main Types of Child Custody Arrangements?
When parents choose to separate, there are two types of custody arrangement they need to consider:
1. Sole Custody
Sole custody means just one parent is awarded custody. When a parent is granted sole legal custody, it means they are the one entitled to make decisions about the child’s upbringing, such as where they go to school or their religious affiliation.
Similarly, when a parent is awarded sole physical custody, it means they will live with them all (or most) of the time, with visits to the other parent.
2. Joint Custody
On the other hand, parents with joint legal custody are both entitled to make decisions about their child’s upbringing. While this doesn’t mean parents have to agree on all matters, it does require a degree of cooperation. For example, decisions relating to the child’s schooling must be agreed upon between both parents with joint legal custody.
Similarly, joint physical custody means the child lives with both parents. This is not always an equal split, but it is an important distinction.
Can You Have Both Types of Custody Arrangement?
In short, yes. Sometimes, parents have joint physical custody, but one parent is awarded sole legal custody (and is therefore entitled to make the important decisions alone).
On the other hand, parents may share joint legal custody, making decisions both independently and together, with one parent awarded sole physical custody.
The precise arrangement will depend upon a variety of factors, which we’ll discuss more in detail later in the article.
What Are California’s Child Custody Rights for Unmarried Parents?
In California, child custody laws differ between married and unmarried parents. If you’re not married, the mother automatically gains custody of any children at birth. This means, when going through a separation, the mother doesn’t need to do anything. They automatically gain custody of the child, both legal and physical.
An unmarried father, on the other hand, does not automatically have the right to custody of the child. This realization is often distressing for unmarried fathers as they worry about the future of their relationship with their child.
But all is not lost, and fathers can obtain their parental right to custody by establishing paternity.
I’m the Named Father on the Birth Certificate. Isn’t That Enough?
Unfortunately, being named as the child’s father on the birth certificate isn’t enough to establish paternity. Instead, the state requires legal proof you are the biological father. To do this, you can sign a declaration — known as a voluntary declaration of paternity.
This is a straightforward process when both parents cooperate. But what if the mother refuses to discuss custody and visitation rights? In these circumstances, you will need to seek assistance from the courts and may benefit from mediation. You may also be required to provide DNA evidence to support you in establishing paternity.
Sometimes, parents decide to sign a voluntary declaration of paternity at the hospital when the child is born. If you did this, you have already established paternity in the eyes of the law and you don’t need to take this extra step now.
I Trust My Child’s Mother. Do I Need to Establish Paternity?
Many unmarried parents separate amicably and are able to negotiate custody and childcare arrangements without legal assistance. But is this approach advised?
Ultimately, only you can decide what’s best for your own unique circumstances. However, there are some important facts that need to be considered. If you’re an unmarried father, and custody automatically falls to your child’s mother, you have no legal right to influence decisions about your child’s upbringing. This applies to not only schooling and healthcare but also location. Unless you have established paternity, this means the mother is free to relocate anywhere she decides.
Given this point, we think it’s wise to protect yourself against a future change in circumstances, even when the separation is amicable and you’re still able to make decisions as a team. In these cases, most mothers support the father’s desire to formalize the separation and agree to joint custody arrangements. Of course, this doesn’t always happen. But it’s important to make an informed decision for the future of your relationship with a child.
As a Father, Will I Get Joint Custody Once I Establish Paternity?
Once you have established paternity, you still need to initiate proceedings if you’re seeking formal custody or visitation arrangements. This right still falls to the mother by default — this doesn’t change without intervention, regardless of paternity status.
Without knowing the full details of your circumstances, it’s impossible to say what the courts will decide. However, it’s worth bearing in mind that Californian law operates in the child’s best interests.
This means, in the majority of straightforward cases, joint custody is a likely outcome. Most children benefit from arrangements where both parents play a role, and their health and well-being should always be the primary concern.
However, there are also some circumstances where this might not be the best option. The state takes a variety of factors into consideration to reach a decision. These include but aren’t limited to the age of the child and their preferences, the history of their relationship with each parent, and any potential risks posed to the child.
I’m a Mother, and My Child’s Father Refuses to Establish Paternity. Can I Get Financial Support?
Because the law doesn’t make any assumptions about paternity, even when confirmed by the birth certificate, obtaining financial support from the father can be a difficult process. If the father refuses to establish paternity, you don’t have any automatic right to child support payments.
Even if the father pays child support initially, he isn’t legally obliged to and may decide to stop paying it in the future. For this reason, we recommend formalizing the agreement as close to the separation as possible.
When the father doesn’t cooperate, you will need to seek assistance from the courts. If the courts can establish paternity without a signed declaration, they may issue a court order to make him provide financial support.
If I Don’t Have Physical Custody, When Can I See My Child?
This is one of the main concerns shared by parents who don’t have physical custody of their child. But it’s important to understand that a lack of physical custody doesn’t always impact your time with them. In fact, it’s possible for a parent who doesn’t have physical custody to spend more time with their child than another parent who does.
Instead, this time is determined by visitation. In California, there are four types:
Visitation According to a Schedule
Visitation according to a schedule is the most common visitation order as it sets expectations from the start and helps the child establish a regular routine. The schedule specifies when the child will be with each parent.
If parents feel they can communicate and reach decisions amicably, a reasonable visitation order can work well. These plans are more flexible, with parents agreeing between them when the child will see each parent.
When the child’s safety is at risk, it’s sometimes necessary for visits to be supervised. In these instances, supervised visitation orders are often used. They may also be the most appropriate option when a child has had little contact with a parent previously.
If the child’s health and well-being is at risk, even under supervised visitation, a no visitation order may be used to prevent contact between that parent and child.
What Happens When Parents Don’t Agree?
A breakup is often a difficult time for everyone involved. Although the majority of parents want what’s best for their child, sometimes there are differences of opinion about what that entails. For example, one parent may feel joint custody is the best option, while the other thinks sole custody is in the child’s best interest.
What happens next?
If you can’t reach an agreement together, you will need to file a petition for custody of your child. When this happens, you will receive a court hearing, where you will be able to put your views forward. It’s essential you go into the hearing prepared, understanding the factors the court will use to determine your family’s future arrangements.
The court will listen to both arguments before making a decision they feel is in the best interest of your child.
They will consider a range of factors when reaching this decision. What is the child’s relationship with each parent like? Does the child have a preference? Are both parents capable of taking care of the child? Is the child safe with both parents? Are there any concerns about child abuse or substance misuse? Where does the parent live, and does the child have any particular ties with the community there?
This isn’t an exhaustive list, but it’s important to anticipate your ex-partner’s responses to these questions. Is there anything they may be able to use as leverage to obtain sole custody? Doing this can help you prepare your case, maximizing the chances of your preferred outcome.
Do I Need Legal Assistance From Heath Baker Law?
While legal assistance isn’t a requirement when you’re separating from your child’s other parent, we think it’s a sensible idea.
The breakdown of a relationship tends to be a highly emotional time — for the parents and the children. These emotions can add an extra challenge to establishing the best solution going forward.
For this reason, it can help to have professionals on hand to share their wisdom and expertise, as well as to help you consider all the implications of your chosen approach to raising your child apart. Ultimately, we know you have your child’s best interests at heart, and we want to support you in reaching an agreement that benefits everyone concerned and that protects your relationship with your child.
It’s important to note these guidelines apply to the state of California, and other rules may apply in different areas.No matter where you’re located, a lawyer can help you understand how to come to an agreement about childcare arrangements following your separation, minimizing distress and reaching an agreement that works for everyone involved. Get in touch to find out more about how we can help support you through all stages of this process.