If you are an unmarried mother, we are assuming:
- You have never married the father of your child;
- You were not married to someone else when your child was born;
- Paternity was not established by you both signing an Acknowledgement of Paternity (AOP) form or through a court-ordered DNA test; and
- There is no court order that gives someone else custody of your child.
Mother: As a rule, in most states, if the parents are not married, the mother is automatically given primary custody rights over the children. California Family Code Section 7610 provides that an unmarried mother automatically gains custody of her child upon birth. No legal action is required to assert her custodial rights. She is solely responsible for providing for her child and making decisions regarding his living arrangements, health care and education. Without a court order, the mother determines what, if any contact, the father has with the child. However, unless paternity is established, the mother has no right to child support from the father in this situation.
Father: For the father, it is his responsibility to prove legal paternity. Without establishing being the child’s legal father first, he will not have legal rights to make arrangements with the mother regarding child custody. Once paternity is established, he can acquire legal rights to provide child support, request a visitation schedule, and other arrangements agreed to between both parties and with the court’s approval. The rights of the father often are a problem for unmarried parents. He will need to contact a lawyer if the mother is unwilling to cooperate with visitation or to enter into joint custody. A court-ordered and binding decision can provide the father with either custody or visitation rights.
When the parents are married, the law automatically assumes that the married people are the child’s legal parents. Compared to their married equivalents, unwed fathers are not by default assumed to be the biological fathers of their children, even if they may well be specified as “Paternal Father” on the child’s birth certificate but California Courts have decided that in itself does not acknowledge parentage. Furthermore, with the unwed father not being assumed to be the Paternal Father, this prevents a mother from recouping child support from the father and a father from being granted child custody or visitation.
The Different Types of Child Custody Arrangements:
Sole Custody: If an unmarried parent seeks sole custody, you will need to prove that the other parent is unfit or will not consider the child’s best interest, and cannot provide adequate sheltering, medical, and educational resources. It was stated above that the mother is granted full custody over the child. However, if the father can prove that she is legally unfit, the father gets the chance to win sole custody.
Joint Custody: If both parents seek joint custody, you will have to agree that you can offer support and discuss the terms of physical and legal custody responsibilities. If you are awarded joint custody, both parents must abide by the custody agreement you have reached with the court.
Legal Custody: Both parents can get legal custody over the child if they come to terms. That is if the mother who is granted full custody is willing to involve the father with established legal paternity. This mainly concerns making vital decisions on all aspects of the child’s life.
Physical Custody: When it comes to physical custody, one parent will have primary physical custody, with one parent having visitation rights. The ideal is to have an agreement in place that with the child’s best interest as the paramount goal and the parents can reach an agreement without court intervention.
Child Support: Both parents, married or unmarried, are responsible for providing child support. The amount of child support depends on the financial capacity of the parent. Both parties can create a legal agreement regarding the contribution, or the court can order the final percentage or amount of child support to be provided by both parents. Even, if one parent is not able to gain custody, that parent will still be obligated to pay child support.
The courts may need to intervene if the unmarried parents cannot decide how to arrange custody and visitation. I am a firm believer that best efforts should be made in order to prevent a custody hearing(s). If possible, an agreement can be reach once paternity has been established. Absent circumstances that prevent a parent from having legal custody and visitation rights to the child, having both parents in the child’s life is the goal.
If you have any further questions and/or requests, do not hesitate to email me at [email protected] or call my office at 310-601-7144.
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