This article is for both unmarried mothers and fathers who want to know where they stand legally in regard to child custody. If you are an unmarried mother and paternity has not been established, YOU have legal and physical custody of your child. The term “legal custody” refers to decision-making power, such as the power to decide on your child’s healthcare, education, religious upbringing, and where your child lives.
When we say that unmarried mothers have physical custody, it means that by law, they have the right to have their child live with them 100 percent of the time. A child’s biological father can ask to visit his child and he can ask for his child to spend the night or several nights, but he can’t insist upon it and there is no way that a court would make a mother let the father see his child without a child custody order in place.
If you are an unmarried mother, we are assuming:
- You have never married the father of your child;
- You were not married to someone else when your child was born;
- Paternity was not established by you both signing an Acknowledgement of Paternity (AOP) form or through a court-ordered DNA test; and
- There is no court order that gives someone else custody of your child.
If any of the above facts are NOT true, the information contained in this article may not apply to your situation. But assuming these facts are 100 percent true, we encourage you to continue reading and if you have any questions, feel free to contact our firm directly to meet with a member of our legal team.
Unmarried Mothers Gain Automatic Custody at Birth
When a woman is married, the law assumes her husband is the child’s biological and legal father, but when an unmarried woman gives birth to a child, the child does not have a legal father until paternity is legally established.
So, if an unmarried woman gives birth to a child, she has automatic custody of the child; the biological father has zero rights and responsibilities to his child. This means the mother cannot demand child support and the father can’t demand custody or visitation. In order for the family court to issue child custody or child support orders, paternity would have to be established first.
Mothers Have Legal Custody Without Going to Court
In California and all other states, mothers have legal custody of their children without having to go to court. This means that unwed mothers have all the rights of a parent, including:
- The right to decide where the child lives;
- The right to decide who watches the child;
- The right to select a pediatrician;
- The right to enroll the child in daycare or school;
- The right to take the child to the doctor or hospital;
- The right to receive public benefits for the child; and
- The right to do anything that any parent with legal custody would be able to do by law.
Custody Isn’t Necessarily Permanent
If an unmarried mother has sole custody because she never told the father about the child, or because he refused to sign the AOP form, or because the parents haven’t asked for a DNA test, that doesn’t mean the current custody situation is written in stone. In reality, the courts can still make a custody decision.
If the child’s father didn’t know about the baby and he finds out or if he did know and decides he wants to ask the court for custody or visitation, the court can order a DNA test and decide on custody based on the facts of the case. For example, if a DNA test is ordered by the court and it confirms paternity, the court can decide to award custody or visitation to the father. However, just because a DNA test is confirmed, it doesn’t guarantee a court will automatically award custody, but it may award reasonable visitation.
Who Has Been Caring for the Child?
After paternity is confirmed and if the father is seeking custody, the court is going to consider what’s in the child’s best interests. The court will also want to know:
- Did the father know about the child?
- If the father knew about the child, did he make an effort to be in the child’s life?
- If he made an effort, did the mother encourage him to see the child?
- If the father did not know about the child, what was his response when he found out?
- Does the father have a criminal record and if so, what was the nature of the offenses?
- Does the father have a history of domestic violence, sexual offenses, violent crimes, or drug offenses?
- Does the father have a history of substance abuse and if so, how recent was it?
- What is the physical and mental health of both parents?
- What are the financial circumstances of both parents?
- If the father knew about the child, did he give the mother any money for support?
- What is the child’s relationship with his or her other family members?
If you are the mother, what are your thoughts on visitation? Unless you’re concerned that the child’s father could endanger your child in any way because he has a substance abuse problem or violent tendencies, you should consider letting him have reasonable visitation. Courts appreciate it when a parent encourages the other parent to see their child and they do take this into consideration. The courts will also consider if you’ve permitted visitation in the past.
If you want to prove to the court that you will allow visitation in the future, our advice is to allow visitation now. Unless you are concerned about your child’s health and safety, it’s a good idea to let the father see his child, even if you don’t have a court order requiring it. However, if you’re worried the father will harm the child or flee with the child, you have no obligation or legal duty to allow such visits.
Whether you’re an unmarried mother or father, we can help you get clarity and direction on your case. Contact us today for a free consultation.
