In the state of California, there are two types of custody: physical custody and legal custody. Legal custody refers to the right and responsibility of a child’s parents to make important decisions regarding that child’s education, health, religion, and welfare.
Legal custody may either be sole legal custody, where one parent has the authority to make all of the major decisions, or joint legal custody, where both parents have equal rights to make decisions regarding the child.
Physical custody refers to the right of a parent to have physical possession of their child. In other words, physical custody refers to who the child resides with, and for how long they reside with that parent. When a child primarily resides with one parent more than the other, then the parent who has greater physical custody is known as the primary custodian. Parents may also share joint physical custody of their child in the event of a divorce or separation.
It is important to note that child custody laws in California differ between married and unmarried parents. At the time of a child’s birth, if the parents are not married, then the mother automatically gains custody of any child at birth. In other words, the mother’s rights to a child are granted automatically upon the birth of the child.
On the other hand, a father’s paternity needs to be established in order for the father to gain parental rights over a child. Paternity is not automatically established when the parents are unmarried. However, once paternity is established by the father, then the father may seek to pursue custody of their child in cases of separation from the child’s mother.
The easiest way for a father of a child to establish paternity is by signing a voluntary declaration of paternity to be listed on the child’s birth certificate. If both parents sign the voluntary declaration of paternity, then parental rights are considered to be firmly established with the same power as any court order.
Importantly, if the declaration is not signed in the hospital at the time of birth, whether due to the father’s absence or for some other reason, then the declaration of parentage can later be signed by visiting a welfare office or court. After the form is signed, it must then be filed with the California Department of Child Support Services in order to become valid and enforceable.
Can an Unmarried Father Take a Child from the Mother?
In short, it depends. Historically, family laws were stacked against fathers who sought physical and legal custody of their children. However, presently, both state family laws and courts have become more unbiased as to their perspective on granting a father legal or physical custody of their child.
Discussions of whether or not an unmarried father may take a child from their biological mother typically become necessary in situations involving a legal separation between the biological father and mother, especially in cases where one parent cannot assume or perform their duties and responsibilities as a parent.
Child custody decisions will always be based on the child’s best interest standard in California. The child’s best interest standard is a legal standard that prioritizes a child’s welfare over that of their parent’s desires.
In other words, what is considered to be best for the child will always be placed over the wants and needs of the parents involved. Family law courts in California will only make custody decisions based on what is best for the child affected by those decisions. The child’s best interest standard may be found in California Family Code § 3020(a).
Examples of common factors used in evaluating a child’s best interest when it comes to determining custody in California include:
- Each parent’s relationship with the child;
- Each parent’s history of interactions with the child;
- Whether or not one parent has been acting as the child’s primary caretaker and for how long;
- The child’s background, such as their attachment to their home, neighborhood, and school;
- The mental and physical health of each parent;
- The mental and physical health of the child;
- Each parent’s financial state and their ability to provide for the child;
- Each parent’s residence;
- Whether or not the child has any special needs, such as health, mental, or medical;
- The wishes of the parents, if they have both agreed to a particular custody arrangement; and
- The child’s preference, if the child is old enough and capable of stating a preference.
- In California, children who are at least 14 years old must be allowed to address the court unless the family court judge concludes that it wouldn’t be in their best interests to do so; and
- Children younger than 14 years of age may address the court only if the judge finds that they are intelligent enough to speak on the issue.
What Will Likely Happen if There Is a Custody Battle Between Unmarried Parents?
When it comes to what is likely to happen if there is a custody battle between unmarried parents, child custody laws for unmarried parents in California will play a large role. For instance, if paternity has not been established for the father, then the custody of the child will automatically go to the mother.
However, if paternity has been established, then the child’s best interest standard will be utilized to determine what is in the child’s best interest. In general, it is presumed to be in the best interests of a child to spend equal time with both of their parents. In other words, joint physical and legal custody is often presumed to be in the child’s best interests.
A local attorney in California is often necessary in order to ensure that a parent’s legal rights are protected during a custody fight. In order to avoid a lengthy custody battle, it is important for both parents to do their best to remain amicable and willing to compromise when determining child custody. An attorney can help a parent avoid a lengthy and expensive custody battle and help find a working custody arrangement for both parties that a court will approve of.
What Are Some Other Issues That Unmarried Parents May Experience?
There are many issues that unmarried parents may experience. Overall, the biggest issue that will cause issues for unmarried parents would be unestablished paternity. Once again, without signing an acknowledgement of paternity, determining child custody will be a more drawn-out issue.
This is because the father will then have to take court action to determine paternity through court-ordered testing. After that entire process, then a custody battle will often ensue when the two parties are not on the best of terms.
Establishing paternity is also important for a variety of other matters in addition to custody, such as determining tax implications, decision-making for the child, and setting up child support. In order to properly care for a shared child, the custodial parent has the right to receive financial support in the form of child support from the non-custodial parent. This is true even when the parents are unmarried.
Another common issue is if one of the unmarried parents lives in a different state. Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the child’s home state is the court that has jurisdiction in child custody matters. In general, if the child is born in a California hospital, then that is considered to be their home state. However, if the child has lived in a different state for six or more months, California may no longer have jurisdiction.
Do I Need an Attorney for Help With Child Custody Issues Between Unmarried Parents?
If you are an unmarried parent and are experiencing issues related to child custody, it is advised that you consult with an experienced California child custody lawyer. LegalMatch can assist you with setting up a legal consultation with an experienced attorney in your area. An attorney will then be able to advise you as to what your best course of legal action is when it comes to child custody.
An experienced and local child custody attorney will be best suited to help you adhere to California’s specific laws and guidelines regarding child custody. An attorney will ensure your child’s best interests are being protected, as well as ensure that your parental rights are protected as well. A child custody attorney will also be able to represent you in court as needed.
Last Updated: Jun 26, 2024
