Child custody issues are not as clear to unmarried parents as they are for married couples. This is because California provides clear guidelines on child custody issues when parents are married while this is not always the case for unmarried parents. Still, with the help of the San Diego Family Law Attorney, you will able to understand how to go about the issue of child custody if you are unmarried. Below is what you need to know about child custody for unmarried parents and how you can contact us to speak to a family law expert.
What is Child Custody?
Child custody refers to having legal and/or physical control of your children and usually, the child or children will reside all or most of the time with the parent who has the majority of custody. There are different types of custody orders under California law.
- Legal custody
This kind of custody is where both or one parent has the responsibility and right to make crucial decisions regarding the child’s education, welfare, and health. There are two categories of Legal custody orders.
Sole legal custody: Under California family code 3006, sole legal custody means that only one parent has the justification and responsibility to decide on matters related to the education, health, and child’s welfare. This means that either the mother or the father exclusively makes decisions such as where a child attends school, the religion a child practices, residence, and medical decisions among others.
Joint legal custody: Under California family code 3003, joint legal custody is where both parents share the responsibility and right to make important decisions in the best interest of their child or children regarding education, health, and the child’s welfare in general.
In the majority of the cases, the court prefers to grant both parents joint legal custody to enable both of them to have equal influence and input in the crucial decisions concerning the child’s welfare. However, if joint legal custody is granted to you and both you and the co-parent fail to agree on any issue concerning your child’s welfare, health, and education, you may have to involve the judge by returning to court and have him/her make a decision about the best interest of your child. Joint Custody means that neither parent can make important decisions in the child’s life without getting consent from the other parent and involving them fully.
In some instances, the decision of the court will either be the other parent or you being denied joint legal custody. Some of the reasons why a parent is denied joint custody are; if one is incarcerated or has a domestic violence history or for any relevant reason, the judge finds a parent not fit to be involved in decision making regarding a child’s life.
- Physical custody
A physical custody order indicates the residence of a child. There is primary or joint physical custody as discussed below.
Primary custody: Under California family code 3007, primary physical custody implies that the child will be under the supervision and will reside with one parent. Hence, your child resides with you if you are the custodial parent. In most cases, the parent who does not get primary custody gets the rights to visit the child for predetermined hours.
Joint custody: Under California family code 3004, joint physical custody means that each parent gets enough period of physically spending time with the child. The aim of such an arrangement is to guarantee your child’s contact with the other parent frequently and continuously. In such an instance, the child resides with both parents; but sometimes, obligation such as school and work may limit equal division of time.
How is Custody Determined if Parents Are Unmarried?
Under California Family code section 7610, an unwed mother automatically becomes the custodian of her child upon birth. Therefore, the mother has sole legal and physical custody until an order from the court says differently. When parents are unmarried, paternity must be established. There are two ways to establish paternity in California.
- By Signing a Voluntary Declaration of Paternity
This is mostly done at the hospital when the child is born, and both parents sign a declaration form. The parents’ names appear on the birth certificate of the child and therefore, the mother does not need to go to court to prove who the father of her child is. The declaration can also be signed after the birth certificate has been issued if the father is absent at the hospital. That means there will be a new birth certificate with the two parents’ names. Once the parents to the child have signed the VDP, it is very difficult to undo paternity. But if one or both parents change their mind after signing, they are supposed to file a Declaration of Paternity Rescission form with the court within 60 days of the signing of the VDP.
- Getting a court order
In this case, you can go to court yourself {either parents} and fill out, file, and serve court documents. You may also need to attend a hearing before a judge. In this case, the judge may order a DNA test to provide parentage evidence. DNA is a biological material that determines an individual’s characteristics. Some of these physical and nonphysical characteristics are inherited from the mother and others from the father. Therefore, by comparing the DNA coding of a father, mother, and child, a relationship can be established. Saliva, hair, blood and every part of the body has DNA but in most cases, saliva is used in DNA determination. The case pertaining to parentage should be filed in the residence county of the child.
How Does a Judge Decide Who Gets Custody?
The law dictates that the judge must give custody according to what is in the best interest of the child. The following are some of the things the court will consider when deciding on custody.
Age of the children
The doctrine of “ tender age” has been out of fashion for a long time but, some judges still believe younger children should live with the mother, more so if she has been the primary caregiver.
Children’s preferences
If a child is of at least 14 years, the judge may ask them for an opinion. Still, there is no specific age when a judge considers the child’s opinion because courts have considered the opinions of children as young as eight. The judge is the one that decides the weight to give the child’s preference and that means the court doesn’t have to follow a child’s preference.
The child’s health and safety
Since every decision the court makes is in the best interest of a child, custody is given to the parent who is capable of providing a safe and healthy environment to the child. For example, judges may not grant visitation or custody to the father of a child who was born as a result of raping the mother. The law prohibits the judge from granting custody to a parent who has committed first-degree murder of the child’s other parent or has been convicted of physical or sexual child abuse.
Either parents use of drugs or alcohol
If the parent is an alcoholic or abuses other drugs, the court cannot give custody to him/ her because their lifestyle endangers the life of the child.
Each parent’s history of caregiving for the child
In most instances, the parent who has a history of caregiving to the child is normally granted custody
The residence of the child’s siblings
In cases where there are other children involved, maybe from another relationship, the judge will make sure the siblings are kept together except in extraordinary circumstances.
Which parent is more likely to encourage a relationship between the child and the other parent
Some parents tend to ill talk about other parents to children. Such a parent would be considered unfit for custody because children need attention and love of both parents.
Who can offer the most stability for the children and also parent’s history of violence or child abuse
In California, some factors are considered irrelevant when deciding custody of a child. These are;
Religion. The parent cannot be granted or denied custody on the basis of religion.
Gender. A father can be granted custody of a daughter or son and the mother can be granted the custody of a son or daughter. The most important issue is that the decision is done in the best interest of a child.
Sexual orientation. Whatever the kind of a relationship a parent is in or their sexual orientation, these cannot be the basis of denying or granting a child’s custody.
Handicap. Parents cannot be denied custody due to their physical disability.
Race. Parents cannot be granted or denied custody because of their race either.
Can a Mother be Found Unfit for Full Custody?
Whenever the court is presented with a child custody dispute, the court’s basic consideration is in the best interest of the child. Despite the fact that the mother is the automatic sole custodian of a child, her custody right can be stripped off due to serious conduct that would put the child in danger. If there are instances of physical violence, excessive disciplining, emotional abuse, drug or alcohol abuse, convictions for sexual offenses, associating with criminals, poor feeding, clothing, and educating the child among others then, the mother is considered unfit for full custody. Another reason a mother can be considered unfit is if she has a mental illness.
For the mother to be stripped of her custodial rights, there must be evidence that she is raising a child in an environment that poses danger to his/ her life. The evidence can be in the form of
- Photographs, video, and audio files
- Medical records related to injuries
- Criminal records
- Emails, texts, and voicemails between you and the mother
The Rights of Unmarried Fathers and their Children
Since the mother of the child has sole custody of the child, the father has to establish paternity prior to being granted his parental rights. This is because there is no assumption of parentage for unmarried fathers. Once the father establishes paternity, the court can make orders for health insurance, visitation, name change, and child support. There are many other reasons why it is essential for unmarried fathers to establish paternity
According to the judicial council of California, establishing parentage is important in several ways. The child gets the emotional benefit of knowing who both his or her parents are. Legally, it entitles a child to similar privileges and rights as those of a child born to married parents.
The privileges and legal rights a child gets are:
- Having the names of both parents which give a child identity
- The right to inherit from either parent
- Financial support from both parents
- Possessing the name of both parents on the child’s birth certificate
- Health and life insurance coverage from both parents
- Access to family medical record and history
- Legal documentation identifying both parents
- The right to receive social security and veteran benefits, if they are available.
How Can a Father Win Custody?
The first step towards winning a custody case is to initiate a case. You can initiate a case by doing the following.
First, call the department of child protective services where they will investigate and file your case for you or petition for custody since you were not married. It is important to inquire about the forms you are supposed to file in order to make your request. Use the forms to explain why the other parent is unfit and the kind of custody arrangement you want.
Secondly, you are supposed to file all the necessary documents. Here, you make several copies of the documents and take them to the court clerk. The court clerk will then file your original forms and stamp them as “filed.” There is a regular filing fee which is supposed to be paid and if you can’t afford to pay the fee, you can apply for a fee waiver.
Thirdly, you should serve the mother with formal notice of the proceedings. You can do that by asking the clerk to notify her on your behalf or pay a professional process server or the sheriff’s office. You may otherwise arrange for a friend or a relative who is not involved in the case and should be above 18 years to hand-deliver the documents. It is very important to have your process server sign and fill out an Affidavit of Service Form to verify he/she served the other party.
Finally, you should attend the hearing and wait for your case hearing. You should dress professionally and arrive on time. It is essential to bring evidence may it be documents, photographs, audio or video files, and present it when called upon. If there is a witness, you will be permitted to give a testimony that demonstrates the mother as unfit. After the conclusion of the hearing, comply with the court orders.
Can the Unmarried Custodial Parent Receive Child Support?
Child support is a monthly sum of money that parents make to help cover the cost of raising a child. The custodial parent is entitled to receive child support because the purpose of child support is meant to address the needs of the child. There are different factors that are considered when determining the amount to be paid for child support.
The Parent’s financial ability
The court has the mandate to ensure that child support payment is proportional to the parent’s income. The court can allow the paying parent to modify the support payment if h/she cannot afford child support.
Needs of the child
The needs and expenses of a child to live a comfortable life are the main determining factors. These are; health insurance, education expenses, rent, food, and special needs.
Age and status of the child
Child support may end at some point in a child’s life depending on the agreement. Some agreements may dictate the paying parent to pay until a child has reached a certain age, graduated from college, or the child is married.
Family structure
This means how many children are involved. The more the children, the more money is required for support. Still, if the paying parent spends significant time with the children, then there will be less money paid to the custodial parent as child support.
Support of other children from another relationship
If the paying parent has other children he or she is supporting, the amount they pay is reduced.
Needs and income of the custodial parent
The custodial parent incurs many expenses to cater to the child’s need, thus, requiring more support. If that custodial parent makes less money than the non-custodial parent, they receive much more payment in child support to cover the expenses.
Other factors considered are union dues, retirement contributions, tax liabilities of each parent, and other relevant costs.
Find a Family Law Attorney Near Me
Sometimes, it’s not easy for parents to agree on child custody issues, especially when the parents are unmarried. This is why courts handle these disputes, and family law attorneys play crucial roles of ensuring that the process is smooth and you understand all issues. In San Diego, California, you can rely on the San Diego Family Law Attorney for any child custody issues that you need addressed, whether you are married or unmarried. Call 619-610-7425 to speak to one of our expert family law attorneys today.
