Unmarried with Kids? The Top Things You Should Know About Getting Custody in California

The laws surrounding child custody for unmarried parents can be very confusing, but they don’t have to be. 

In this guide, we will help to break down California custody laws for unmarried parents and help you to know the necessary steps to take to protect your rights as a parent. 

California Custody Laws for Unmarried Parents

In order for an unmarried father to be acknowledged as the other parent in the eyes of the law, he must establish legal parentage, also known as paternity. This can come from a Voluntary Declaration of Paternity (VDOP), or through a court order. A father’s name will not be added to the birth certificate if either the father or the mother does not sign the VDOP. 

What does this really mean?

Until paternity is legally established, the unmarried mother cannot collect child support, and the father cannot legally ask for visitation or custody rights.

To boil it down even further…

Unwed Mothers’ Rights 

  • Unmarried mothers automatically receive full custody of their child after birth
  • Unmarried mothers do not have to consult the unmarried father about any decision regarding their child if paternity has not been legally established 
  • Unmarried mothers cannot legally collect child support until paternity has been established 
 

Unwed Fathers’ Rights

  • Unmarried fathers have no rights to their child until they establish paternity
  • This means they have no say in in any decisions regarding the child (healthcare, adoption, mental health, school, etc) until they legally establish paternity
  • This also means that they cannot legally enforce visitation

Regardless of your situation, a paternity lawyer will help you to establish paternity and secure your parental rights. 

Advantages of Establishing Paternity 

Yes, establishing paternity allows the father to have legal rights to custody and the mother to financial support, but there are many additional benefits to establishing paternity. These benefits include:

  • The father has access to medical records and history
  • Health and life insurance coverage from both parents
  • The right to inherit from both parents
  • The right to receive social security and veteran’s benefits
  • The father has the right to sign documents on behalf of the child (permission forms and releases)
 
How to Establish Paternity (Parentage)

So, how do you establish paternity? There are two different ways you can legally establish parentage in the state of California. 

The easiest way?

A Voluntary Declaration of Paternity, also known as a VDOP.

The unmarried parents of a child can sign a California government form that voluntarily declares parentage or paternity. This form must be signed by both parents and must be signed VOLUNTARILY by both parties. 

To be eligible to sign a VDOP, there should be no doubt in regards to who the other genetic parent is. 

A properly signed VDOP has the same effect as a court order, but saves you time and money by not having to actually go and fight your case out in court. Legal parentage is in effect once the declaration is properly signed and the form is filed with the California Department of Child Support Services Parentage Opportunity Program

Where Can You Pick Up a VDOP?

Why Sign a VDOP?

  • Legally establishes parentage without going to court
  • Allows the non-birth parent to seek custody and visitation rights
  • Requires that the birth parent consult with the non-birth parent before adoption
  • Allows the birth parent to seek child support from the non-birth parent 

Important note for unmarried fathers:

If you are the unmarried father of a child, signing a VDOP BEFORE the child is born will allow you to have a say when it comes to adoption, and you will also have the right to help make medical decisions once the child is born. Signing a VDOP before your child is born will also ensure that your child is eligible for any of your health insurance benefits and can be left an inheritance if you pass before their birth. 

So what is the second option to establish paternity? 

Court Ordered Paternity

As said above, before you are able to get child support, custody, or visitation ordered by a court, you have to establish parentage. The good news? You can kill three birds with one stone while in court. During your parentage case, you can also petition the judge for child support, custody, and visitation orders.

If you have to go to court to establish parentage, it is likely that either the father disputes the authenticity of being the parent or is seeking to establish himself as the other parent. If this is the case, the court may order the alleged father, mother, and child to submit to genetic testing. 

Whether you are the mother seeking child support, the alleged father who is convinced he is not the parent, or the father looking to establish paternity to gain custody/visitation rights, it is imperative that you have an experienced parentage lawyer to assist you.

Should You Hire a Paternity Lawyer?

Even if you and your ex partner are amicable and both willing to voluntarily sign a VDOP, you will still need to create and agree upon a custody and child support agreement. A family lawyer (who specializes in paternity) will be able help you to create an agreement that will be legally sound and accepted by the court.

It is important to note that a judge has to sign off on all child custody and visitation agreements, even if both parents accept the agreement. A family lawyer will help you to craft an agreement that the judge will sign off on.

If either ex partner is not willing to voluntarily sign the VDOP, hiring a paternity lawyer is vital. A good paternity lawyer will help you to legally establish parentage in the most cost effective way possible. While establishing parentage, your paternity lawyer can also help you petition the judge for child support and child custody/visitation rights.

Determining Custody & Child Support

Parents don’t have to leave visitation and custody up to the decision of a judge. In fact, California courts want the best interests of the child to be the top priority. And often, the best interests of the child are that both parents are involved and amicable. Through mediation, parents can negotiate a child custody/visitation arrangement that will work best for the children and the family. 

But what about child support?

When determining child support, a judge will typically use a complex formula that accounts for four factors: income, tax deductions, child custody percentage, & the child’s standard of living.

The child support formula is obviously complex, but California has provided a calculator for estimating the potential amount that will be owed.  Remember, this calculator provides only an estimation. 

Like child custody, parents can propose an agreed upon child support arrangement to the judge, but the judge must accept it before it becomes legally binding. 

Stephen Cawelti is an experienced family law attorney who specializes in parentage, child support, and enforcing orders.

Establishing Parentage for Same Sex Unmarried Parents

Starting January 1, 2020, the provisions of the California Family Code now allows LGBTQ+ couples to use a VDOP to establish parentage if their child is conceived through IVF and born via a surrogate.

If LGBTQ parents fail to establish parentage and then split, determining custody gets much more complicated. Every case is unique, and a family law attorney will be able to help legally guide you through your unique situation. 

The laws surrounding LGBTQ+ parenting and custody rights are complex and ever changing, which is why it is important to have a family lawyer assist you in navigating the law and help to ensure that you establish parentage correctly.