Who Gets Child Custody if the Parents Are Not Married?
In California, child custody issues for unwed parents are typically resolved in a similar manner as those for married parents. The legal term for child custody in California is “legal and physical custody.”
Legal Custody: Legal custody refers to the right and responsibility to make decisions regarding the child’s upbringing, including matters related to education, healthcare, religion, and other important aspects of the child’s life. It can be awarded as joint legal custody, where both parents share the decision-making authority, or sole legal custody, where one parent has the authority to make decisions.
Physical Custody: Physical custody refers to where the child lives on a day-to-day basis. It can be awarded as joint physical custody, where the child spends significant time with both parents, or sole physical custody, where the child primarily resides with one parent and has visitation with the other parent.
By default, an unwed mother is presumed to have sole legal and physical custody of the child until paternity is established or a court order is issued.
With unmarried fathers, the situation is more complicated. Unwed fathers do not automatically have custody and visitation rights over their child, but first must establish their paternity. Once paternity is established, they can pursue the same custody rights as the mother.
One way to establish paternity is if both parents sign a Voluntary Declaration of Parentage (VDOP) form. In many cases, parents sign this document at the hospital when the child is born, but it can also be signed later at certain government agencies or in the presence of a notary. This form also allows both parents to have their names on the birth certificate.
Another way to establish paternal relationships is via the courts. Sometimes this is pursued by a father seeking custody rights over his kids. Sometimes this is pursued by a mother seeking child support help from a father. In either case, if one party disputes the father’s parentage, then the courts can mediate to establish paternity and may even use a court-ordered DNA test to do so.
Establishing Custody Rights
Just because a father has proved his paternity doesn’t necessarily mean he has established custody rights for his child. By starting a custody and support case, he can initiate proceedings to change the custody arrangements.
Being a parent doesn’t automatically mean the court will grant you custody. However, the court has an obligation to seek what is in the best interest of the child and generally considers being raised by two parents to be in the child’s best interest, so establishing joint custody is often successful.
Determining Child Custody
If the unwed parents cannot agree on a custody arrangement, they can seek court intervention to resolve the custody dispute. The court’s primary consideration in determining child custody is the best interests of the child. The court may consider various factors, including the child’s age, health, and safety, the parents’ ability to care for the child, the child’s existing relationship with each parent, and any history of domestic violence or substance abuse.
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