Law Office of Stephen W. Penn and Associates

What are unmarried parents' rights for child custody?

Unlike the baby boom generation that came before them, parents raising children in the 21st century are far more likely to be unmarried than their parents were. In fact, the number of unmarried parents has doubled since 1968, from 13% to 32% in 2017. About 15 million children live with a single mother, but five million live with cohabitating unmarried parents.

Establishing parentage

However, when unmarried parents no longer have a relationship or move to separate households, child custody becomes an issue, especially for fathers. If a father is not listed on the child’s birth certificate as their parent, he and the mother can sign a voluntary declaration of paternity and must file it with the California Department of Child Support Services Paternity Opportunity Program for it to be effective. Once that process is complete, a father can order a new birth certificate to be issued, with his name listed as the child’s father.

If a father’s relationship with the child’s mother is strained, he will need to file a child custody order or a paternity test with the court if he would like custody rights. He can do this even before a child is born. Establishing parentage also commits a father to child support payments.

Custody and child support

Unmarried fathers need a court order to establish child custody, which also impacts how much child support they will pay. So, if a father does not have a formal child custody agreement filed, the court assumes he has 0% custody and orders him to pay the maximum in child support payments. With a 50% child custody order, he pays 50% of child support costs. Child support is calculated by multiplying the percent of child custody by both parents’ gross income.

Of course, mothers will need to establish paternity to receive child support payments too.

Regardless, when it comes to child custody, California courts treat parents more equally and look to serve the best interests of the child. This includes evaluating how parents can genuinely meet the child’s emotional and physical needs. Courts also favor keeping kids’ routines consistent, such as keeping them at the same school and allowing access to extended family members.

If you feel you need to file a paternity test to establish parentage or want to establish a child custody order, contact an experienced family law attorney. An attorney can help you present your best case so that you can stay involved in your child’s life.

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  • SCBA | Santa Clara County Bar Association | EST 1917
  • State Bar Of California | California Board Of Legal Specialization | Stephen W. Penn
  • Henry P. Collada Memorial Award 2012