Many unmarried parents are raising children together, but what happens to the children if they split up?  When a married couple divorces, the couple must settle child custody, visitation, and child support issues before the court will finalize their divorce.  But there is no requirement for an unmarried couple to go through the courts to end their relationship. Furthermore, there is no requirement for the couple to settle custody, visitation, and child support issues as part of their break up. In this regard, a custody order for unmarried parents becomes critical. Even if the split is amicable and the couple is in total agreement about all of the child-raising issues, it is important that they get a custody order from the court.

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Courts Cannot Enforce Informal Agreements

Confused about the importance of a custody order for unmarried parents and how to get a custody order? First, when an unmarried couple has a child together, the parties will need to establish paternity even if the couple are living together and the father’s name is on the birth certificate.  In many states, including California, the court presumes the husband of a married couple is the father. On the other hand, however, there is no presumption for unmarried couples.  Until a court establishes paternity, neither mother nor father can get enforceable custodial rights of a child.

Remember, a custody arrangement that has not been approved by a judge is not enforceable.  For example, without an agreement, a mother could move away with the child over a father’s objections and deny him visitation.  On the other hand, a father could pick up the child from daycare and refuse to return the child to the mother. If neither mother nor father has a court order that defines custody and visitation, police cannot help or involve themselves if the couple unexpectedly has a dispute.

Even with an informal agreement, one parent can change their mind about the transaction, and the other parent would have no recourse.  Furthermore, any child support paid under a contract that has not been signed by a judge does not count.  If the couple does end up going to court, the court will often establish paternity and child support. In this regard, the court may order a parent to pay child support “retroactively” to an earlier starting time, causing an unexpected financial burden for the parent ordered to pay support.

Unmarried Parents Must Establish Paternity Through Court

As mentioned above, to get a custody order for unmarried parents, the parties will need to establish paternity legally. You must prove paternity even if the couple is living together and the father’s name is on the birth certificate.  Establishing paternity is a two-part process. First, an unmarried couple can acknowledge paternity by both parents voluntarily signing a Declaration of Paternity.  The hospital will usually present this form for signature at the hospital at birth. A couple can also sign it at a public agency such as a local child support agency, welfare office, or family law facilitator’s office. The form is then filed with the California Department of Child Support Services Paternity Opportunity Program.  Keep in mind, however, that this is step 1 of a two-step process. A Declaration of Paternity is not a court order nor does it officially establish paternity or custody. A same-sex partner can also similarly sign a Declaration of Parentage.

The next step is to have the court make a formal order of paternity. Even if a father signs a Declaration of Paternity in the hospital, the parties need a court order of paternity. Once the court establishes paternity, the court can then sign orders about custody, visitation, and support. At this point, the court will treat the unmarried parents the same as a married couple when it comes to these issues.  If the couple agrees on all of those issues, then a judge can sign their agreement, so it becomes a court order.

How to Get a Custody Order for Unmarried Parents

When unmarried parents want to get a custody order, they must file an underlying paternity case. If the father signs a Declaration of Paternity in the hospital, you should attach this document to the paternity petition. Once the court assigns a case number and if the parties agree to paternity and custody, they can then file an agreement that describes their custody and visitation arrangement. For example, a couple can sign a Stipulation and Order for Custody and/or Visitation of Children (FL-355) and Child Custody and Visitation (Parenting Time) Order Attachment (FL-341).  There are other forms available that more precisely define legal custody, physical custody, and holiday visitation schedule.  Each parent should sign the forms, and then submit them to a court clerk for a judge’s signature.  Once the judge approves the forms, the parties now have a formal custody order that a court and/or the police can enforce.

We cannot stress the importance of a custody order for unmarried parents. Too often we have been involved in emergency ex parte custody document preparation when unmarried parents reach an unexpected conflict. If the dispute involves law enforcement, they are often unable to help because there is no order. A People’s Choice can help you get a paternity order, and order for custody, visitation and support. Even with the most cooperative unmarried couples, unexpected disputes can arise. Contact us today at 800-747-2780 if you are an unmarried parent and need help with a custody order.

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