Unmarried Parents: If you are an unmarried mother you have full custody of your child. However, there may be instances when you may still need a written order from the court which documents your parental rights such as when you and the father are having difficulty with custody and visitation issues and a written visitation order is needed to avoid conflict, or you need to provide written proof of parentage to get your child(ren) a passport, etc.
If you are an unmarried father before you can get any custody or visitation orders from the court you must first establish paternity of the child(ren). This is usually done at the birth of your child by signing a voluntary affidavit of paternity usually provided by the social worker at the hospital where your child was born. Another way paternity is established in California is if you have been ordered to pay child support. The state must first determine that you are the legal father of the child before it can order payment of child support. If paternity has been established you can ask the court for custody and visitation or parenting time orders. In California simply being named as the father on the child’s birth certificate does not establish paternity. If paternity has not been established you must petition the court to establish paternity along with custody and visitation orders.
MARRIED PARENTS: Parents married at the time their child is born have legal and physical custody of their child. However, there may be times when a written court order regarding custody and visitation is necessary for married parents such as when married parents have separated and need a court order to facilitate custody and parenting time, or visitation. Another instance could be when parents are divorcing and need a custody and visitation order while their divorce is pending.
GRANDPARENT AND THIRD PARTY CUSTODY VISITATION: Third parties such as step-parents, aunts, siblings and grandparents sometimes find it necessary to ask the court for help in maintaining contact with a grandchild or family member. In these situations custody is not readily available to third parties, including grandparents, unless the child’s parents agree such as guardianship of a minor. However, the court can consider visitation for third parties as long as the parents have divorced, or one of the parents is deceased and the third party and the child(ren) have established a relationship such as living with the child for six months or longer, or having helped raise the child.
MODIFICATION OF CUSTODY ORDERS, INCLUDING CHILD SUPPORT: If you already have a custody order, but it is no longer working because there has been a “significant change in circumstances” such as the custodial parent has moved which requires a new enforceable parenting schedule, or the custodial parent can no longer care for the child(ren) then you will need to ask the court to modify your custody order to fit the new circumstances. This also applies to child support orders. If there has been a significant change in circumstances since the original order was made you can ask the court to modify child support.
REGISTRATION OF OUT OF STATE CUSTODY ORDERS: If you have a custody order that needs to be modified but the child and custodial parent, or yourself no longer live in the state that issued the original order you will need to petition the court in the state where the child and mother have lived for several months to register your custody order there in order to ask the court to modify it. Generally the court that issued the original order will retain jurisdiction, however, as a matter of convenience you can ask that the order be enforced or modified in another state.
ENFORCEMENT OF CURRENT COURT ORDERS: If you have a custody order which the other parent is not obeying and it is interfering with your parental rights you can ask the court to enforce the order and hold the other parent in contempt. This is generally used to make the other parent comply with the order. You can ask the court for makeup time with the child(ren) or even that the other parent be jailed for violating the court order.
Note the foregoing is meant to provide general information regarding custody procedures in California and should not be considered as legal advice specific to your case. You will be given the opportunity to provide About The Children with more information specific to your case.
Please visit us at aboutthechildren.org to speak with a Parent Advocate about your children and family matter.
Written by Martin Mendoza, ESQ. California
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