2013: Child Custody Laws in San Diego as They Pertain to Unmarried Parents

Child custody laws in San Diego for unmarried parents are uniform in the court houses in San Diego County: the two main courthouses in downtown San Diego; Vista; Chula Vista and El Cajon. The law favors both parents having the same rights to their children and the same duties to fulfill as divorcing or legally separating parents would. And of course, the emotions involved with the splitting of the parents and their concerns to secure their children’s future are the same, whether the separating couple is married or not.

Usually, the unmarried mother is presumed to be the natural custodian of her children born out of wedlock. So, she has sold legal and physical custody rights, which means that her children stay with her and she has the right to care for and control them. These rights are superior to those belonging to the father of the children or any other person however the father can file a Petition to Establish a Paternal Relationship in San Diego Superior Court which will give him the same rights as the mother. As such, for unmarried fathers, it is crucial to file this pleading immediately and this can be filed while the mother is pregnant.

After delineating the natural custody rights of an unwed mother, it is thus natural that the discussion should also touch on the rights, natural or contested, of an unwed father. As stated above, the father cannot automatically secure primary physical custody of his children. The father can ask the court to grant joint legal or joint physical custody or both or other visitation rights or some other form of custody of the children upon the filing of the Petition to Establish a Paternal Relationship.

In San Diego, the court recognizes the man as the legal father of his child if he has signed a Voluntary Declaration of Paternity or a Judgment of Paternity is entered but not solely if his name is listed on the birth certificate. The rights of being a parent include being allowed to make decisions such as medical, health, education, welfare, religious and many others as well as spend time with the child as per a parenting plan that has been agreed to by both the parents and access all personal information and records of the child. The parental duties of an unwed and legal father towards his children include the obligation to provide for their physical, psychological, and financial needs, protect them, and act in a way that is conducive to their best interests.

After having stated the custody rights, both natural and contested, of unmarried parents, it is noteworthy to mention that the San Diego Judges, in the event of a dispute, take into account the best interests of the children before awarding custody rights to any parent. The various factors that the court considers are bonding, frequent and continuing contact, stability and also the children’s preferences, if they are old enough as well as many other factors under the Family Law Code.

The considerations that govern the formulation of a parenting plan for unmarried parents are no different from that in case of legally separating or divorcing couples once the paternity is established. A parenting plan should ideally include the residential schedule that also clearly indicates the schedule during holidays, vacations, and other special events and a clear demarcation of the various critical parental duties like taking the children for medical visits or choosing a school. The parenting plan should make it clear that each parent should keep the other informed about their present location and should also lay down the rules in case a parent wants to relocate with the children.

Doppelt and Forney, APLC, a family law firm in San Diego, practices in child custody cases that involve both married and unmarried parents. They provide a free introductory 30-minute virtual consultation session with an experienced child custody attorney.