We have covered many child custody issues related to divorce, but what happens when the parents were never married to each other? Commonly referred to as “paternity” or the more inclusive “parentage” cases, these matters proceed in much the same way as a traditional custody case, but have unique elements. Parentage cases have been some of my favorite and most memorable in my years of practice. Read on for an overview of the child custody laws in California for unmarried parents.
Generally speaking, unmarried biological mothers automatically gain custody of a child upon birth. The unmarried father does not have reciprocal rights to a biological child until legal paternity is established. To debunk a common misnomer, simply indicating the father’s name on the birth certificate is not adequate, just as not listing dad on the birth certificate does not preclude his parental rights. Three ways that parentage can be established in California are:
- Voluntary Acknowledgment of Paternity. By far the easiest way, both of the unmarried parents can sign a Declaration of Paternity. This is sufficient to establish legal parentage. to move forward with custody and support claims.
- Family Court. An unwed mother or father can file a lawsuit in family court to establish parentage. If both parents agree on paternity, case closed. If the parties do not agree, the court may order a DNA test in the case of an alleged biological dad.
- Administrative Agency. Administrative agencies that give government benefits to a child that does not have a legal father may seek to establish paternity for the purposes of reimbursement.
This brief overview excludes situations where the biological mother is not the gestational mother (e.g. a surrogate), an adoptive parent-child relationship, or a scenario where a party establishes parentage by “holding out” the child as his or her own. California state law in particular is “fertile ground” for the myriad ways a person can become the legal parent of a child.
Custody & Support
Once parentage has been established, courts can determine legal and physical custody in exactly the same way as a court would determine these issues if the parents had been married. If the parents cannot agree, the court will make a parenting plan which involves both physical custody (where the child lives and when they see the other parent) and legal custody (decision making power over the health, education, and general welfare of the child). The Court will also implement a child support order as determined by a uniform guideline formula which takes into account both parties’ income and the time they spend with the child, respectively.
One interesting aspect of parentage cases is that, unlike a traditional custody case stemming from a divorce, the court files are essentially “sealed” from the public view for these matters that are considered more sensitive in nature.
Know Your Rights
The law surrounding parentage evolves each year in California with new precedents establishing expanded rights for unmarried parents. It is important to know your rights. And to act on them timely. Take care to locate an experienced family law attorney familiar with the law in this specialized area who can best guide and advocate for you using your specific set of facts to ensure you have the best opportunity for success.