Unmarried Parents With Minor Children

Unmarried parents with minor children may be reluctant to involve the courts, especially if they are romantically involved or have an amicable relationship. While their relationship may be good now, circumstances could change in the future and it is often prudent for co-parents to seriously consider legally defining their rights and obligations as soon as possible. If they wait until relations sour, it could lead to contentious battles in the Courts without any preparation and/or planning. Additionally, by waiting to legally determine child custody or support, they may inadvertently not be protecting important legal rights such as parentage itself.

In San Diego, the Courts can grant parents physical custody or legal custody of their children. Legal custody is the right to make critical decisions regarding how to raise the child, such as what medical treatment they will receive and from whom, where the child will attend school, what activities the child will participate in, and what religion the child will observe if any. Physical custody is the right to enjoy time with a child and is the parenting plan or schedule.

In determining how to divide physical and legal custody, the Court’s sole concern is what is in the best interest of the child. In other words, the Judge will order a custody arrangement that benefits the child regardless of whether it is detrimental to a parent. Typically, the Courts like to maintain the child-parent relationship and will grant both parents physical and legal custody rights. In some instances, though, the Court will find it necessary to grant one parent sole physical custody; for example, in situations where one parent has a history of domestic abuse or substance issues or is incarcerated. The law believes it is in the best interests of children to have a strong bond with both parents and also to have stability with both parents. This is often a fact-based decision made on the evidence and law which is applicable to the case.

Under California law, all parents have an obligation to support their children financially, regardless of whether they are married. Thus, unmarried parents with minor children can seek child support from their co-parents. Statutory guidelines dictate how the California Courts determine the amount parents should provide for their children.

The child support guidelines rely on a number of factors to establish support obligations, including the number of children each parent must support, the income each parent earns or can earn, and the amount of time each parent spends with the child. The guidelines also take into consideration the costs of healthcare, whether insured or uninsured and other guideline factors. Broadly speaking, though, the child support guidelines require the higher-earning parent to bear a greater portion of the financial burden of raising the child depending on the timeshare and other factors. Also, there are mandatory additional “add ons” such as one-half of all childcare for employment and/or education as well as for unreimbursed and uninsured medical costs. There does need to be an Order for this to be part of the child support amount.

In extraordinary cases, the Courts may issue an order establishing a support obligation that deviates from the guidelines. For example, if the parties agree to a support obligation that is less than the amount demanded by the guidelines, they can sign a written agreement and submit it to the Court for approval. 

Under California law, if a child is born to an unmarried mother, the mother automatically has full custody of the child. Fathers of children born to unmarried women do not have any parental rights unless they prove their paternity. The paternity of a child born to unmarried parents can be established via a Voluntary Declaration of Parentage or through genetic testing. If the parties agree as to the child’s paternity, they can sign a Voluntary Declaration of Parentage and file it with the Department of Child Support Services to establish paternity.

If the mother or prospective father want court orders for the parenting plan, either of them can file a Petition to Establish a Parental Relationship or request that the Child Support Office in San Diego County [DCSS] determine paternity. If they take either action, a Court or the Department of Child Support Services will generally compel genetic testing; if the results prove that the prospective father is the child’s actual father, the Court will issue an order declaring him the legal father of the child and will also include the ability to order child support.

Orders defining child custody and child support will typically remain until the child reaches the age of 18 and graduates high school or 19 unless the child has special needs. Either parent can seek a modification of a child custody or support order before that time, however. The Courts will not modify an existing order unless the party seeking the modification offers evidence to support that the current order should be modified to guideline. Changes that may necessitate a modification in a child support order include a change in the health of the child or the parent or an increase or decrease in either parent’s income or the costs of raising the child. Situations that may require a change in a child custody order include either parent moving away or developing substance abuse or health issues.