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How does custody work with unmarried parents in California?

Many couples have children without getting married. If the couple later decides to separate, the issue of custody and visitation is not always as clear-cut as it may be for couples who were married.

Unmarried parents should know some basics about how the law views these situations in California.  

Parentage establishes equal right to custody

According to California law, an unwed mother automatically has custody upon birth of her child. She does not have to take legal action to assert her rights as the custodial parent. The law enforces a father's rights once he establishes paternity. If the father completed a Declaration of Paternity at birth or any time after, he has already done what he needs to do to establish paternity.

If the father refuses to establish paternity, California courts allow mothers to file papers in family court that order the father to take a paternity test. Once the father's parentage is established, both parents have equal rights under the law to custody of the child, and they have equal responsibilities to support the child.

Legal orders must be set up

The parents must go through the court system to manage custody, visitation and child support, just as married couples do. The unmarried couple needs to negotiate a parenting plan and then set up legal orders to manage the custody and visitation situation.

If the unmarried partners are separating amicably and can agree on how to manage things, this process may be relatively straightforward. However, many couples do not separate amicably and have disputes over custody and visitation. Unmarried parents should not rely on a private agreement to manage custody because it is not enforceable through the courts. Unmarried parents can request that the court set up an order regulating custody, visitation and support.


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