Father and daughter writing at a table You and your significant other have decided to break up, and you realize that this life change will no doubt take a toll on you emotionally. However, you’re especially concerned about how California custody laws for unmarried parents will impact the child you share with your future ex. Who exactly will gain custody of your child? How is joint custody for unmarried parents handled? The law in California views married couples and unmarried couples differently when it comes to making child custody decisions. Here is my overview of what you should know about child custody for unmarried couples.

Who Has Custody of a Child Born Out of Wedlock? 

When it comes to California custody laws for unmarried parents, the law explains that unwed mothers automatically gain custody of their children when they are born. In most cases, unmarried mothers will not have to take legal action to assert their custodial rights. Although your partner can take matters to court depending on the situation or if one party deems the other unfit. You are fully responsible for taking care of and determining suitable living arrangements, education, and health care for the child. Along these lines, you decide how many contacts your partner will have with your child if any.

Can an Unmarried Father Take the Child from the Mother?

No, your child’s father can’t take your child from you if the two of you are not married in California. California custody laws for unmarried parents are very clear about that. When the child is born, state law immediately grants full custody (both physical custody and legal custody, which we’ll explain later) of your child. That means you can make every major decision for your child. Key Takeaways
  • Unmarried mothers automatically receive child custody following their children’s births.
  • Unmarried fathers can’t take their children from their mothers.

How Courts View the Father in Unmarried Child Custody Situations

According to the law regarding joint custody for unmarried parents in California, you, as a father who isn’t married, have no rights to your child if you haven’t established legal paternity. That’s because the law immediately assumes that married parents are legally the parents. But this is not so with California custody laws for unmarried parents trying to figure out child custody. Having your name listed on the child’s birth certificate is not enough. Establishing legal paternity is the only thing that will give you the right to see your child and to make decisions regarding their wellbeing. In addition, if you have established legal paternity, you can stop the child’s mother from relocating with your child. Otherwise, your child’s mother may move away and even deny you visitation rights, no matter how much you object to her decision. Note, though, that the court may grant you sole custody of your child if you can demonstrate that the mother is not fit to rear the child or that you have been the primary caregiver for the child.

What Are the Rights of Fathers in Unmarried Child Custody Situations?

California custody laws for unmarried parents are not favorable to the father. Unmarried fathers do not have inherent rights, which is why they must take the initiative to pursue rights through the courts. An attorney can help with this and explain everything there is to know about joint custody for unmarried parents. Fortunately, judges in California often try to allow unmarried fathers to be a part of rearing their children. Key Takeaways
  • Unmarried fathers have no rights to their newborn children unless they have established paternity.
  • Unmarried fathers don’t have inherent child custody rights in California.

Types of Child Custody Mother and daughter warmly embracing

As you navigate California custody laws for unmarried parents, note that two types of custody exist: physical and legal. According to the law regarding joint custody for unmarried parents, primary physical custody is usually given to an unmarried mother who has just had a baby. Still, if you are the child’s unmarried father, you can obtain joint legal custody of the baby. In addition, you can receive visitation rights. With joint legal custody, the mother and father can equally share in the decision-making process regarding the child’s medical care, extracurricular activities, schooling, and religion. Now let’s say that you are the father. But the mother received primary physical custody as well as sole legal custody. In this scenario, you still get the right to visitation or parenting time. And you can still be actively involved in your child’s life. Key Takeaways
  • The unmarried parent with physical custody is the one with whom the child will reside regularly.
  • The parent with legal custody has the right and power to make any decisions regarding the child.

Who Has Custody of a Child if There Is No Court Order in California?

If a court order is not in effect, both parents have legal custody of the child—assuming that the father has already established legal paternity. If the father has not established paternity, the mother retains child custody. When discussing the terms of joint custody for unmarried parents in California, the situation does not have to be adversarial. In cases where both parents share custody, the parents can come to an amicable custody agreement on their own, working out the details of full-time custody and visitation. Remember, though, that when it comes to California custody laws for unmarried parents, mothers tend to have favor in negotiations. If both parents agree on the terms of custody, that agreement becomes binding and enforceable. However, if the parents cannot reach an agreement or one fails to abide by the terms of the agreement, the courts may get involved. Depending on the nature of the custody dispute, a judge may enforce the previously agreed-upon terms of the original custody arrangement, or the judge may send the parents to Family Court Services so that a mediator can help them to renegotiate the agreement and specific terms. Those terms would then become binding and enforceable. Key Takeaways 
  • If the two parents were unmarried at the time of birth, the mother has custody by default unless the father has established legal paternity.
  • If the father has established legal paternity, the two parents share custody.
  • Parents with shared custody can reach an amicable custody agreement without court intervention. 

Other Things You Should Know About California Custody Laws for Unmarried Parents

Be mindful that as you explore joint custody for unmarried parents in California, the state generally views joint custody as being in the child’s best interests. If you and the other parent agree to share legal custody of your child, you must work collaboratively to develop a visitation and custody plan that meets your needs. Of course, in some circumstances, joint custody is not the best option for the child. A family law judge will consider factors such as a history of child abuse and parental drug abuse before making a custody decision.  In unmarried child custody situations, courts will also consider factors like welfare, health, and child safety. As well as how much contact the parents have been having with the child. In certain instances, courts may also consider the preferences and opinions of children, particularly those above 13 years old.  Key Takeaways
  • California judges typically favor joint custody over sole custody when handling child custody for unmarried couples.
  • Judges in California will always prioritize the children and their best interests when issuing child custody rulings for unmarried parents in California.

Receive Help with Child Custody Today!

Dealing with joint custody for unmarried parents can understandably be daunting. After all, you must figure out the legal ins and outs of the situation while simultaneously coping with the emotional aspect of it. Fortunately, you don’t have to deal with child custody for unmarried couples alone. I, attorney Michael C. MacNeil, work with my clients to navigate the complexities of California custody laws for unmarried parents. I can walk you through California law and help you protect your best interests. As well as the best interests of your children when it comes to joint custody for unmarried parents.  Get in touch with me today to learn how I can protect your rights during each stage of your child custody case. For more help understanding how child custody works in California, visit our Child Custody FAQ for detailed answers to your most pressing questions about child custody in California.

Please call or contact our office online to arrange for an appointment about your case today.

About Michael MacNeil

Michael C. MacNeil is a San Diego Family Law and Criminal Defense attorney. With a Juris Doctor degree from the University of San Diego School of Law, MacNeil has a solid understanding of our justice system. As a member of the State Bar of California, MacNeal can practice before all courts in the state. MacNeil believes that the law should be accessible to everyone, regardless of their financial status. With over 20 years of experience, Michael C. MacNeil is passionate about the law and will work tirelessly to get the best possible outcome for you. Call Mr. MacNeil at 858-922-7098.