Understanding Unmarried Fathers’ Rights in California

In California, more than 35% of babies are born out of wedlock. Cultural norms are evolving, but this trend presents some unique complications in the event of a custody dispute. What happens if the father wants custody or visitation rights? We’re here to clear up the confusion about unmarried fathers’ rights in California.  

Does an Unmarried Father Have Rights in California? 

An unmarried father does have rights, but the extent to which those rights are recognized will depend on the actions taken by the father. 

The first thing you need to understand is that an unwed father’s rights are not inherent. In other words, when a baby is born out of wedlock in California, the child’s custody—and all the responsibilities and protections thereof—is automatically granted to the mother.  

Before a father’s rights can be recognized, the father must establish legal paternity. There are multiple ways to do this. The easiest way is for both parents to sign a Declaration of Paternity when the child is born. This is a voluntary measure that establishes both partners as the legal parents of the child. If this document is signed prior to the creation of the birth certificate, both parents will be listed on the birth certificate. If it’s signed at a later date, a new birth certificate can be issued. 

Parents can also ask their local child support agency to establish legal paternity on their behalf. This is a free service that’s available through the California Department of Child Support Services (DCSS). To get started, the father would contact the child support agency in their county and request to open a case for parentage. This service is available to both parents and can be requested even if the child hasn’t yet been born.

Finally, if all else fails, the father can petition the court to establish legal paternity. This is a complex, multi-step process that should only be undertaken with the assistance of a knowledgeable paternity lawyer. This option may be the best course of action in cases where the paternity is disputed by the mother, in cases where one parent is uncooperative, or in cases where paternity is being established as part of a larger custody battle. 

Unwed Fathers’ Custody Rights in California

When it comes to an unwed fathers’ custody rights in California, the legal implications will depend on whether or not the father was ever married to the mother. 

Does an Unmarried Father Have Rights if He Was Never Married to the Mother? 

In cases where the parents are unmarried at the time of the child’s birth, legal custody is automatically granted to the mother. Because the father’s paternity has not been legally established, he has no legal claim to the child. However, if the parents take the step of establishing legal parentage via a Declaration of Paternity, the unmarried fathers’ rights in California would be the same as those of a married father. In other words, both parents are recognized as having legal custody of the child. 

If both parents have legal custody and then separate, they will still share legal custody barring any intervention from the court. If the parents can amicably agree on physical custody and visitation, the court is unlikely to intervene. However, if the parents cannot reach an agreement on custody and visitation, they may petition the court to intervene. A judge would then seek to mandate custody and visitation requirements based on the best interests of the child. 

Does an Unmarried Father Have Rights if He Is Divorced From the Mother? 

In cases where the parents were once married but are now divorced, the unmarried fathers’ rights in California are roughly the same as the rights outlined in the previous section (the only major difference being that the father doesn’t need to establish legal paternity). 

If both parents can agree on how to handle the welfare of their child, they may both retain custody and make decisions about their child’s care without the intervention of the court. However, if the parents cannot agree on custody, or if the court feels that a particular living situation is not in the best interests of the child, the judge may make custody decisions as part of the divorce (or subsequent childcare) proceeding.

Fathers who are unhappy with a current custody agreement can request a new custody and visitation court order. This should always be done with the assistance of a skilled attorney. As in any childcare proceeding, decisions will be made according to the best interests of the child. Judges and Family Court Services mediators will look at factors that include the child’s age, the child’s health, the parents’ individual living situations and ability to care for their children, and any emotional ties that the child may have to a particular parent or living situation. 

In Cases of Same-Sex Parentage 

In cases where two fathers are present, the child’s custody would depend on the pre-established legal parentage. If both parents adopted the child together, they would share legal custody by default. 

If only one parent adopted the child (or is the legal, biological father of the child) and the other parent has not established paternity, the sole legal parent would have custody of the child. The parent without legal custody would need to petition the court if they believed that they were entitled to parental rights. As in any child custody matter, the unwed father’s custody rights in California are dependent on whether or not legal paternity has already been established (or could be established). 

Unmarried Fathers’ Rights in California – Child Support 

Establishing paternity comes with responsibilities in addition to rights. If you establish paternity but are not the primary custodial parent, you may be required to pay child support. But what if you are the custodial parent? 

Remember, as long as legal paternity has been established, an unmarried father retains all the same rights and protections as a married father. That means that if you are the custodial parent (meaning that you reside with the child more than 50% of the time), you may be entitled to child support. However, note that child support orders are usually separate from custody and visitation orders. So if you believe that you’re entitled to child support under the law, the first step is to speak with a knowledgeable child support lawyer. 

I Fight for Unmarried Fathers’ Rights in California 

If you’re an unmarried father, your rights in California are not inherent—but you do have rights all the same. In fact, you have the same rights as any father. To ensure that those rights are recognized, the first step is to establish legal paternity. 

If you’re struggling to establish paternity, or if your rights aren’t being fully recognized, I’m here to help. I’m attorney Michael C. MacNeil, and I specialize in helping unmarried fathers to navigate the complexities of child custody law. I serve fathers throughout the San Diego area, and I can help you with everything from establishing paternity to negotiating custody and visitation. Get in touch with me today for a free legal consultation, and let me be your fiercest ally.

FAQs

Can I seek custody even if I am not married to the child’s mother?

Yes, you can seek custody once you have legally established your rights as a parent. Many fathers have received favorable custody arrangements by demonstrating their commitment and a stable home setting. The courts always consider the child’s welfare, and providing evidence of your participation in activities like school functions or doctor visits can strengthen your petition.

What is the difference between legal custody and physical custody?

Decision-making authority (legal custody) is the power to determine critical aspects of daily life, including education, healthcare, and overall well-being. Physical custody is what determines where your child resides. The law is clear about unmarried fathers’ rights in California, so it’s important to establish legal paternity as a basis for your custody case.

How do California courts decide on custody arrangements?

Courts consider several factors, including the well-being of the child, the living environment, and the involvement of both parents. For example, if one parent regularly attends school meetings and sports events, that effort stands out. Judges notice continuous involvement. The goal? To create a plan that works well for everyone. Contact me for help building your case.

Can I object if the other parent plans to relocate with my child?

If you have established legal rights, you can raise concerns about relocation in court. For example, if the move disrupts your established visitation schedule or distances you from your child, the court may intervene. A thorough evaluation of the situation will help determine whether a relocation is best for the child.

How can past domestic conflict affect custody decisions?

Courts prioritize child safety and carefully review past conflicts. For example, if there have been documented police reports, heated text messages, or disparaging emails, the court may impose supervised visitation. Your commitment to a peaceful environment can help mitigate these concerns and support your case.

Can I request a last name change for my child?

Changing a child’s last name requires the consent of both parents or a court order if there is a dispute. The court will assess the reasons for the change and its potential impact on the child. Consider the legal implications and whether the result will benefit the child before proceeding.

Can disputes over financial contributions be resolved legally?

Yes, disagreements over child support or other financial responsibilities are addressable in a California court. For instance, if you believe the support amount is unfair, you can request a modification. A balanced review of parental incomes and child needs will guide the final decision.

What if my name is not on the birth certificate?

If your name is missing from the original record issued at birth, you can still establish your rights through DNA testing, additional documentation, and legal proceedings. The unmarried father has no rights in California unless legal paternity is established, so taking the steps necessary to get an amended birth certificate can help your case. Taking timely legal action and showing proof of engagement can ensure your ongoing participation in your child’s upbringing. Contact me to discuss your options.