Child custody is a fairly straightforward matter when the parents are married to each other, unless they are separated. Divorce can complicate things, of course, but most people have a general idea of how a California family court might divide the rights and responsibilities of parenthood between two divorced parents. But how are these rights affected when unmarried parents separate or when they never lived together in the first place?

California Paternity Law and the Presumption of Fatherhood

When a woman gives birth, her husband (if any) is presumed to be the child’s biological father. “Presumed” means that the husband will be treated as the biological father until proven otherwise. This presumption does not apply, however, if the father is not married to the mother at the time the child is born. In this case, the identity of the father can be established by (i) a court order declaring paternity, or (ii) a Voluntary Declaration of Paternity signed by both parents.

Until paternity is established, child custody cannot be awarded to an unmarried father and neither can child support obligations be imposed on him. Suppose, for example, that a married woman gives birth to a child whose biological father is not her husband and she then seeks a divorce. In this case, the court will treat the woman’s husband as the biological father for the purposes of assessing custody and child support until paternity is otherwise established.


A mother receives automatic custody of her child as soon as he is born, due to the fact that the identity of a child’s biological mother is seldom in doubt. This custody can be withdrawn, of course, if the mother is found to be an unfit parent.

One Parenthood Is Established

If the parents of the child are not married, the question of custody does not disappear once the identity of the child’s biological mother and father have been established. In this situation, a California court will address questions of the legal and physical custody of the child in much the same way that it would address the same questions if the same parents had been married and were now divorcing.

In other words, the court will assign each parent joint legal custody, joint physical custody, sole physical custody, sole legal custody or, in unusual cases, no custody at all. Keep in mind that, if the biological father has been legally established but no court order of visitation rights has been entered, the amount of child support payments due from the father will be set at a maximum allowable for the parents’ relative gross incomes.  

We Will Fight for Your Rights

If your parental rights are in dispute, or if you anticipate that they might soon come into dispute, call CKB Vienna today or contact us online to schedule a consultation. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.