We Are Not Married – What Are My Parental Rights If We Split Up?

As attorneys, we are seeing this situation more and more often, especially among younger parents: They fall in love, decide to have a baby together and then somewhere along the way, they become disenchanted with their lives. One or both of them decides to leave. But, you may wonder, what happens to their child or children? Who gets custody? And, can an unmarried parent get child support?

In the State of California, when people are legal parents of a child, whether biologically, or by joint adoption, and they split up, their child-related matters will normally be handled in the same way as if they were a divorcing married couple. In other words, the same rules apply to them as apply to a married couple.

Child Custody

When parents split, either parent can have custody of the children, or the parents may share custody. The judge makes the final decision about custody and visitation but will usually approve the arrangement (the parenting plan) that both parents have agreed to. If the parents cannot agree, however, the judge will make a decision. Courts do not automatically give custody to the mother or the father. Instead, the judge will decide custody based on what is in the best interest of the child. The child’s welfare, health and safety are the most important concerns. The court will also consider which parent demonstrates a willingness to maintain frequent and ongoing interaction with the other parent.

There is a large wrinkle, though, for unmarried parents. When a child’s parents are married to each other, the law automatically assumes that both individuals are the child’s legal parents. If parents are not married, the father must establish his legal paternity in order to gain custody of his child or children (including joint custody) and have visitation rights. If his paternity is not legally established, the child’s mother cannot ask for and receive child support from him.

Child Support

Just as with married couples, child support for unmarried parents is based on each parent’s net disposable monthly income and the amount of time the child will be cared for by each parent. The court considers each parent’s income from all sources, whether or not it is reported or taxed under federal and state law. Income can be in the form of money, property or services, including: wages from a job, commissions, bonuses, self-employment earnings, unemployment benefits, disability and workers’ compensation benefits, interest, dividends, rental income, social security and pensions. Certain items will be subtracted from each parent’s disposable income, including: taxes, mandatory retirement contributions and health insurance premiums.

Learn More

If you are not married, splitting up from your partner and need to better understand your parental rights and obligations, please contact our office for a consultation.

Attorney Christina Sherman is a Marin County CA family law attorney and Certified Family Law Specialist, specializing in divorce, child custody and support, marital contracts and other family law issues.

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