About Child Custody for Unmarried Couples in California

Father visiting daughter and drawing

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 the split will impact the child you share with your future ex.

Who exactly will gain custody of your child? How is child custody handled for unmarried couples?

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 child custody for unmarried couples in California, the law explains that unwed mothers automatically gain custody of their children when they are born. Unmarried mothers generally will not have to take any legal action to assert their custodial rights, though 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 your child and determining his or her living arrangements, education, and health care. Along these lines, you determine how much contact 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, you are immediately granted full custody (both physical custody and legal custody, which we’ll explain later) of your child. This 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 pertaining to child 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 the legal parents of the child, but this is not so with unmarried parents trying to figure out child custody

It’s not enough to have your name listed on the child’s birth certificate. Establishing legal paternity is the only thing that will give you the right to see your child and to make decisions regarding his or her 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 may object to this.

Note, though, that the court may grant you sole custody of your child if you can demonstrate that your child’s mother is not fit to rear him or her, or that you have served as the primary caregiver of the child.

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

California custody laws for unmarried parents are not favorable to the father. Unmarried fathers do not have any inherent rights, which is why they must take the initiative to pursue rights through the courts. An attorney can help with this. Fortunately, judges in California often try to give unmarried fathers the chance 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 child smiling and touching noses

As you navigate California custody laws for unmarried parents, note that two types of custody exist: physical and legal.

According to the law regarding unmarried parents and child custody, 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, both 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 situation, you still get the right to visitation or parenting time. In this way, 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 unmarried parent with legal custody has the right to make major decisions regarding the child’s wellbeing.

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

If no court order has been issued, both parents retain legal custody of the child—assuming that the father has already established legal paternity. If no such paternity has been established, the mother retains custody. 

When we’re talking about child custody for unmarried parents in California, the situation doesn’t 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, negotiations tend to favor the mother.

If both parents come to an agreement about their child’s custody, that agreement becomes binding and enforceable. But if an agreement cannot be reached, or if one of the parents 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 parents’ custody arrangement, or the judge may send the parents to Family Court Services so that a mediator can help them to renegotiate the terms of their agreement. Those terms would then become binding and enforceable. 

Key Takeaways 

  • If the two parents were unmarried at the time of the child’s birth, the mother has custody by default unless the father has established legal paternity. 
  • If the father has established legal paternity, the custody is shared between the two parents. 
  • It is possible for parents with shared custody to reach an amicable custody agreement without court intervention. 

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

Note that as you explore child custody for unmarried couples 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, it’s critical that you work collaboratively to develop a visitation and custody plan that meets your needs.

Of course, in some situations, joint custody is not the best option for the child. A family law judge will take into consideration 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 the welfare, health, and safety of the child, as well as how much contact the parents have been having with the child. The court may also look at the preferences and opinions of the child, particularly one above 13 years old, depending on the situation. 

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 best interests of the child when issuing child custody rulings for unmarried parents in California.

Receive Help with Child Custody Today!

Dealing with child 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 child custody for unmarried parents in California. I can walk you through California law and help you to protect your best interests, as well as the best interests of your children when it comes to child 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.