If you’re a father of children but never married the other parent, you may wonder if you have any rights if you separate as a couple. It’s natural to be concerned, as you want to remain part of your children’s lives, even if you’re not the custodial parent. Here’s what you need to know.
Does Marriage Affect Parental Rights in California?
Here’s the good news: Fathers have parenting rights in California. The key to parental rights is paternity and maternity. If the father can be proven to be one of the biological parents, they may be awarded the same rights as a married father. In other words, biology is usually the determining factor, not present or past marital status.
However, a child born out of wedlock in California is given to the mother for custody, at least initially, as she’s the one who gave birth. The father needs to establish his paternity in order to activate his rights. Until that happens, the mother has full rights.
The easiest way to do this when a couple remains unmarried is to sign a Declaration of Paternity, preferably before the baby is born. If the form is signed and filed before the birth, both parents’ names will be listed on the birth certificate. It can be done after the child is born, but the birth certificate will initially only list the mother. Once the Declaration is signed, a new, updated birth certificate can be issued.
What if the Mother Doesn’t Want to Have the Father Listed on the Birth Certificate?
A mother may wish to keep the father off the birth certificate because the paternity is in dispute or because custody is at issue. At that point, the father will need to pursue court proceedings. This is a complicated, time-consuming approach that should be undertaken with the help of an experienced family law attorney. Various legal strategies, requirements, and timelines need to be followed closely in order to have the father recognized and allowed his full parental rights.
Can Fathers Be Awarded Physical Custody and Child Support in California?
Yes. The days when the mother was automatically awarded physical custody and support are mostly gone. Today, the courts will look at what’s best for the child and which parent is best situated to have physical custody. Numerous aspects play into physical custody, including which parent will provide the best living situation based on a number of factors. The court will look at the suitability of the housing provided, access to good schools, other family members, and friends, as well as if the custodial parent is able to physically be present much of the time (as opposed to a parent who must frequently travel for work, for example).
In California, the courts tend to award joint physical custody as often as possible, as it’s usually in the child’s best interests to have both parents involved in their upbringing. However, there are times when sole physical custody will be awarded to one parent, meaning the child will live full-time with them. In cases involving domestic violence or child abuse, the child will likely be placed with the parent who is not the abuser.
If the court is going to award sole custody, it will look for a compelling reason to do so, such as one parent is provably unfit.
What Is the Difference Between Physical and Legal Custody?
There are two types of custody in California, something that often confuses people. As discussed above, physical custody means where the child lives. That can be joint or sole. In joint custody, the parents may take turns hosting the child, or they may take turns staying in the home where the child resides permanently. If one parent has sole custody, the child stays with that parent full-time. There are times when the parents agree to have one parent be the sole custodian, but the other parent has visitation rights.
The other type of custody is legal custody. This has nothing to do with where the child lives but focuses on various other parenting concerns. It’s about the type of education the child will receive and where they’ll go to school, what type (if any) of religious upbringing they’ll receive, what extracurricular activities they’ll participate in, and medical care, among others. Essentially, this involves all significant decisions that need to be made on behalf of the child. It doesn’t involve the more minor life decisions, such as whether or not the child can play with a friend one day after school.
Legal custody can be awarded as sole or joint, just as physical custody can. Just as with physical custody, there needs to be a compelling reason for one parent to be awarded sole legal custody. The courts would prefer to have both parents involved in making the critical decisions for the child. When joint legal custody is awarded, both parents have the right to have access to school and medical records–something that doesn’t happen with sole legal custody.
What Can I Do to Protect My Rights as an Unmarried Father?
Call Reel Fathers Rights to request an initial consultation. We know how important a father is in his child’s life and how important it is for both to have a close relationship with each other. Every custody and support case is unique. Our fathers’ rights attorneys work with you to determine the best approach for you to arrive at the best possible outcomes.