I’m an Unwed Father, Do I have Any Custodial or Visitation Rights?

by | May 22, 2024 | Child Custody & Visitation

Generally speaking, in California a father has the same custody exact custodial rights that a mother does assuming that there are no judicial orders which exist that modify that base standard. However, this is not necessarily as clear-cut as it may seem where certain circumstances exist. There are situations where the father’s rights may not be exactly the same as the mother’s rights governing custody of a child, the most common of which is where the parents of the child were never married.

Essentially, an unwed father’s rights are not inherent as they would be where there was a marriage existing between the parents of that child, when the child was born. Until parentage (E.g., in this scenario “Paternity”) is established with the state though, a father may not actually have any rights to visitation, custody, or decision making of the child or children.

Often, an unwed father may discover this unfortunate “surprise” of sorts when their relationship with their child’s mother breaks down and leading to a lack of time and custody of their child or children with their partner.  A further surprise comes to the extent that that they may not have the custody and visitation rights they may have thought they had simply from being listed on their child’s birth certification even though the parents were never married.

This discovery stems from the fact that in California, where there is an unwed couple, the child’s custody, responsibilities, and protection, are automatically granted to the birth mother solely unless certain steps are taken by the father.   Simply put, signing and/or being listed on the birth certificate for the child alone is insufficient to establish these types of rights for the father.

The simplest manner by which a father can establish paternity and thus, custodial rights, is for both parents to sign a “Voluntary Declaration of Paternity” (“VDOP”) when the child is born. This can often occur immediately after birth either at the hospital itself, and/or in the following days through the actions of the parents.  This voluntary measure establishes both partners as the legal parents of the child. If this document is signed prior to the creation of the birth certificate, both parents will be listed on the birth certificate. If it’s signed at a later date, a new birth certificate can be issued.

Alternative, Parents in California may potentially also ask their local child support agency to establish legal paternity on their behalf. This is a free service that’s available through the California Department of Child Support Services (“DCSS”).

Finally, if paternity has not been established through a VDOP or via DCSS, the father can petition the court to establish legal paternity. This option may be the best, and potentially the only available option to the father, where there is no VDOP already established, paternity has not been established through DCSS, the paternity is disputed by the mother, or in cases where paternity is being established as part of a larger custody battle.

The VDOP and DCSS options indicated above are much more straightforward and may not necessarily require an attorney, however where there are issues like those mentioned in this writing, it would be ideal to obtain assistance with a licensed California family law attorney to assist with filing a Petition to Establish Parentage (Most often this is “Paternity” but not necessarily always) and to begin that process so that rights may be obtained through the Court.

Another common question related to such a scenario is “how do I discovery if there is a VDOP?” and that can be ascertained by contacting the California Department of Public Health Office of Vital Records. If paternity were established through DCSS, while it would be unusual for the Parties to not recall this having occurred and/or having knowledge of this having occurred, a father may also contact DCSS to ascertain if any measure establishing paternity was ever conducted through that organization. If it is determined that neither a VDOP establishes paternity nor DCSS establishment of paternity, then the only remaining measure available for an unwed father is to file a petition to establish paternity. Until paternity has been legally established, no visitation or custodial rights existed for an unwed father.

If you are experiencing difficult with establishing paternity and/or seeking to clarify if paternity has already been established to begin with, the best available recommendation is to contact a licensed California Attorney experience with Family Law matters to assist you with determining your available options, establishing your paternity, and obtaining the custodial and visitation rights you may be seeking.