"Andrea worked with me prior to my birth and then right after I had my son to come up with a custody agreement/parenting plan, his father and I were unmarried. She was timely and professional and brainstormed ways in which to approach the agreement. She was great! I'm happy we got a chance to work together. The outcome was favorable for me." - Former Client, Janell B.
Child custody is always complicated, but what happens when unwed parents make the difficult decision to go their separate ways?
The first step in determining custody is establishing parentage. Unwed parents do not gain parental rights automatically – there has to be proof of parentage. To establish parentage, you and your ex-partner need to sign a declaration of parentage.
Essentially, this document shows the court that you are willing to bear parental responsibilities regardless of your relationship status. Once a declaration is signed, the court can usually proceed with the custody arrangements. A judgment packet is also filed with the court. These forms can be a bit confusing.
Custody in Court
In cases where the parents are unmarried, the court may not be able to enforce custody. Unless there are established grounds for parentage through a specific declaration, the court cannot legally ensure that one parent is responsible for child custody or support.
Parents can agree on a custody and visitation plan and it is always best to have an attorney help them draft a very specific agreement that gets filed with the court along with the paternity judgment documents. In the absence of an agreement by the parties, the court is responsible for awarding legal and physical custody and determining visitation.
When creating and enforcing a parenting plan, the custody process can become even more complicated when parents aren’t married. Once there is an established groundwork for parentage, custody proceedings proceed as they usually would in cases with married/divorced parents.
Custody in California
Child custody depends on several factors, and the court will need to evaluate all of them to make the right decision.
Here are some of the factors a judge considers:
- The child's best interests
- The child's age
- The criminal history of both parents
- Current and potential health and welfare concerns
- The amount of contact between the child and both parents
- Prior agreements/negotiations between parents
In cases involving a declaration of parentage, the Judge will use the documents filed to help make their decisions. You may have already reached an agreement with your ex, but settlements still need to go through the court to become a court order.
Finances also play a role in child custody arrangements. If one parent earns a substantial salary while the other parent is unemployed, the judge may choose to give physical custody to the higher-earning parent. On the other hand, if the higher-earning spouse has a criminal history or proof of drug/alcohol abuse, or works long hours, the court could order them to have minimal visitation instead of giving them physical custody.
There are a lot of factors that come into play and you want to make sure your paternity judgment is done right and that you have reached an agreement that is best for your child or that you have put your best arguments forward with the court.
Ultimately, the final say in all California child custody cases belongs to the judge. He or she will review the case and advocate for the child to the best of their ability.
How to Get Custody as an Unwed Parent
The best thing you can do for child custody is to consult a lawyer. Only a qualified attorney can give you the guidance you need to navigate the complicated court process.