Who Gets Custody When Parents Aren’t Married?

Hossein Berenji, Feb 11, 2019

Parents aren’t always married when they have a child. Sometimes getting pregnant is enough to motivate a couple to tie the knot. Other times, marriage is never in the cards. Discussions about custody can be more challenging when parents aren’t married. This is particularly true when an unmarried couple breaks up and decide to go their different ways.

What happens when unmarried parents split up? Do both parents have the right to have custody of their child? Does one parent have more rights than the other? The answers to these questions will ultimately depend on circumstances that are unique to each situation.

Fathers May Need to Establish Paternity

Generally speaking, mothers and fathers share equal rights when it comes to the custody of their children. This is true whether or not those parents are married. However, fathers may have to go through a few extra steps to exercise those parental rights. It’s fairly simple to identify a child’s legal mother. Except for a few select situations – such as surrogacy – a child’s mother is the woman who gives birth to that child.

Fathers don’t give birth. When couples aren’t married, there’s a greater chance that a woman will have multiple sexual partners. As a result, there may be a legitimate question about whether or not a particular man is the biological and legal father of a child.

Why is it necessary to establish paternity? If paternity is in question or contested, a mother may have an easier time denying a father certain rights and privileges. At the same time, a father may be able to avoid certain obligations – such as paying child support – if paternity is unclear.

How Does a Father Establish Paternity?

There are two primary ways to establish paternity in California.

Declaration of Paternity

Establishing paternity doesn’t always mean that there has to be a fight or arguments. If parents are confident that a particular man is the father, they can both sign a voluntary Declaration of Paternity. This form is typically signed at the hospital not long after a child is born. Once signed, a father is presumed to be the biological father of a child.

Court Orders and Genetic Testing

Paternity can also be established through genetic testing. A court can require a father to take a DNA test if:

  • The parents don’t have a signed Declaration of Paternity, AND
  • Either parent has requested a child custody, child support, or visitation order.

Men can also take a DNA test at their own convenience to confirm that they are or are not the father

What About Same-Sex Couples?

Same-sex couples don’t have to be married to have children together. It may be necessary for one or both parents to petition a court to establish that they are the lawful parents of a child. This typically involves stating that you (a) intend to be the child’s parent and (b) act as the child’s parent. Once a court legally recognizes parental rights, that parent can enjoy the benefits and obligations that follow.

Both Parents Share Equal Rights to Custody

When paternity and parental rights are not in question, both parents share an equal right to have custody of a child. It’s generally up to the parents to figure out a custody arrangement that works best for the child and the family. If unmarried parents can’t agree, courts will require mediation. If mediation is unsuccessful, courts will step in, consider the facts, and make a unilateral decision that it feels is in the child’s best interests. Parents will only have their custodial rights taken away if there is cause to do so (e.g., substance abuse, domestic violence, psychological issues).