Who Has Primary Custody if the Parents Are Unmarried?

Married parents and unmarried parents are treated very differently by the California court system. While both parents have parental rights and obligations to a child if they are married when the mother gives birth, for unmarried individuals the mother automatically has sole primary custody of the child after she gives birth. Birth mothers require no legal steps to establish custody of their children; they are automatically the sole decision-makers and bear full responsibility for their child’s care and support, even if they list a father on the birth certificate. They also have sole discretion over whether or not the child’s biological father may see the child or spend time with him/her.

Unlike the mother, an unmarried father must first establish paternity before he can petition the courts for his rights to custody, visitation, or shared parenting time.

Why Do I Need to Establish Paternity?

Some unmarried fathers wonder why they need to take a paternity test to officially establish paternity in cases where they have an amicable and trusting relationship with the child’s mother. However, there are some key points to remember about the realities of not establishing paternity and legal rights as a child’s father including the following:

• By not establishing legal paternity, a man has no legal right to participate in decision-making about a child’s medical care, education, travel, or extra-curricular activities
• The mother is free to move to another state or country with the child
• The presumed father has no legally defined custody rights or parenting schedule so the child’s mother can legally keep him from seeing the child

Some men mistakenly believe that having their name on the child’s birth certificate is enough to give them parental rights. In actuality, California does not consider a man’s name on the birth certificate enough proof of paternity to establish parental rights if he isn’t married to the child’s mother. Instead, a perspective father must take specific steps to establish paternity in the eyes of the court.

Proving Paternity

Before a biological father can establish parental rights, including their right to visitation or shared custody of the child, they must begin a case in a California family court. There are two ways to establish paternity:

• Both parents sign a Voluntary Declaration of Paternity form in which both mother and father acknowledge that the father is indeed the child’s biological father. Parents may request this form at the hospital. Signing the form establishes paternity and no DNA test is needed and won’t be provided by a court even if a man later declares he’s not the father.
• The father can take a paternity test to prove he is the child’s biological father. The court will provide an official test upon request when one or both parents open a court case to prove paternity. A child support enforcement agency or adoption agency may also file a request for a paternity test.

Once a test has established paternity through the court system, a father can petition the court for all of his parental rights including shared custody or visitation and may also face child support requirements.

The Court Process After Establishing Paternity

After establishing paternity, one or both parents must petition the court for formal custody arrangements. Depending on the unique circumstances of the case, parents may agree on a parenting schedule or the court may assign one that meets the best interests of the child. Joint custody is most common in California today, but there are many other co-parenting schedules that work for both parents while prioritizing the child’s best interests.

If you have questions about establishing paternity and/or opening a child custody case, it’s best to seek the help of a skilled California family attorney.