Child custody is one of the most critical legal issues for parents who are no longer together. In California, custody laws apply to both married and unmarried parents, but the legal processes and presumptions can differ significantly. Understanding these differences is essential for parents seeking custody arrangements that serve the best interests of their children.
Married Parents
When married parents separate or divorce, both parents are presumed to have equal legal rights to their children. As long as a parent is capable, they are generally entitled to 50/50 joint legal and physical custody. In cases where one parent is proven to be unfit or unable to meet the child’s needs, custody arrangements may differ. However, in the absence of such concerns, equal parenting time is the standard goal.
Unmarried Parents
For unmarried parents, custody issues are more complex. Under California law, the mother is automatically granted full legal and physical custody of the child at birth, unless the father has legally established paternity. Without paternity being confirmed, the father has no legal rights to custody or visitation. However, once paternity is established—either voluntarily or through a court order—the father has the same custody and visitation rights as a married father.
Ways to Establish Paternity
Voluntary Declaration of Paternity (VDOP) – The easiest way to establish paternity is by signing a Voluntary Declaration of Paternity (VDOP) at the hospital after the child’s birth or later through a state agency. This form legally recognizes the father without needing a court order. Once signed, the form must be filed with the California Department of Child Support Services to become valid. After the form is filed, the father’s name is added to the child’s birth certificate.
Court-Ordered Paternity Establishment – If there is a dispute about paternity, either parent (or a state agency) can file a paternity case in court. The court may order DNA testing if paternity is contested.
Parentage Presumption – If a person has acted as a child’s parent (i.e. receiving the child into their home and openly holding out the child as their natural child) they may be legally presumed to be the parent.
How Custody is Determined in California
Whether parents are married or unmarried, California courts prioritize the best interests of the child when making custody decisions. Key factors the court will consider when making a child custody decision include:
- The child’s health, safety, and welfare
- The emotional bond between the child and each parent
- The ability of each parent to provide stability and care
- Any history of domestic violence or substance abuse
- The child’s preference (if they are of a suitable age and maturity)
Conclusion
Whether parents are married or unmarried, California courts strive to ensure children maintain meaningful relationships with both parents whenever possible. While married parents typically start with equal rights, unmarried fathers must first establish paternity to gain custody or visitation rights. Regardless of marital status, seeking legal guidance and crafting a solid parenting plan can help ensure the best possible outcome for the child.
At the Law Office of Darshann M. Wienick, we are dedicated to navigating the complexities of high-conflict child custody cases. Our focus is on ensuring that both the best interests of the child through our trauma-informed lawyering practices while maintaining zealous advocacy for you our client. If you need a child custody lawyer, consider partnering with us. Get in touch today to schedule a consultation.
