When we discuss child custody, we often do so in relation to a divorce or legal separation. However, parents do not always get married. They may have one or more children while remaining unmarried.

Child custody can be more challenging for non-married couples who decide to end their relationship. Depending on the circumstances surrounding a child’s birth, the father might not be recognized as the child’s legal parent. If so, he may have to establish paternity before he can seek custody and visitation rights after a breakup.

How Does a Father Establish Paternity in California?

California law presumes that the husband is the child’s father if the parents are married and the child is born during the marriage or within 300 days of the marriage being terminated. Unmarried parents can sign a Voluntary Declaration of Paternity at the hospital when the child is born, listing the man as the child’s biological father. The form can also be completed and filed at a later date.

If an unmarried parent refuses to sign the Voluntary Declaration of Paternity, the other parent can file a Petition to Establish Parental Relationship with the court. The petitioner or the respondent may request DNA testing to establish paternity. If the DNA results prove that the man is the child’s biological father, the court issues an establishing paternity.

What About Same-Sex Couples?

A same-sex couple does not need to be married to parent their children together. However, if they split up, one or both parents may need to petition the court to establish they are the child’s legal parent. Generally, you must prove that you intended to be the child’s parent and acted as the child’s parent.

Who Gets Custody in California if the Parents Are Unmarried?

Once paternity is established, the parents must determine their roles in raising their child. If the parents are together, custody is not an issue. However, if unmarried couples cannot agree on custody terms when they break up, one parent must file for custody through the courts.

The court may require mediation and encourage the parents to develop a parenting plan and time-sharing arrangement that is in the best interest of the child. Child custody is decided based on the same factors regardless of whether the parents are married or unmarried. Judges must determine what is in the best interest of the child.

If the parents cannot agree on custody terms, the judge considers the evidence presented in court and the following factors to decide custody:

  • The financial ability of each parent to provide for the child
  • The physical and mental health of the parents
  • The relationship between the child and each parent
  • The quality of education the child is currently receiving
  • The child’s ties to their home, community, and school
  • The stability of the child’s current home and the need to provide continuity
  • Any history of domestic violence, substance abuse, or child neglect
  • The willingness of each parent to encourage the child to maintain a close relationship with the other parent
  • The reasonable preferences of the child
  • Whether the child has siblings in the home

Judges may consider other factors when deciding child custody cases. Depending on the factors, the judge may grant joint custody so the parents share custody. However, judges may also grant sole custody to one parent if the evidence shows that it is in the best interest of the child.

Legal custody is the right to make decisions for the child, such as where they attend school and the medical care they receive. Physical custody is typically where the child lives.

Even when judges grant joint custody, a child typically lives with one parent most of the time. This parent is the custodial parent. The non-custodial parent will have visitation with the child according to the court order.

However, there are situations where the child splits the time between the homes as close to 50-50 as possible. A 50-50 custody arrangement does not work for all parents and children.

Contact A San Diego Child Support Lawyer

If you have questions about custody matters, call San Diego Divorce Lawyers, APC, for a complimentary case evaluation with a San Diego child custody attorney. We handle all types of custody cases. Our lawyers will help protect your parental rights and your child’s best interests. 

Contact a local family lawyer at (619) 724-4160, explain your circumstances, and try to schedule an initial consultation with the lawyer as soon as possible.

San Diego Divorce Lawyers, APC
2851 Camino del Rio S #430
San Diego, CA 92108
(619) 866-3756