Parents' custody rights vary from state to state. Historically, courts favored mothers when granting custody, but California focuses on the health, safety and welfare of the child. Judges base custody decisions on what is in the best interests of the child, and neither parent is preferred based on gender. Courts look closely at which parent was the primary caregiver, reviewing who took the children to school and doctor’s appointments, picked them up from school, helped with homework and planned daily activities.
In California, there is no presumption that a mother is entitled to custody of her child. Both parents are equally entitled to custody of a minor child. The court’s primary concern is the “necessary or proper” arrangement for the child, not the gender of the parent. In fact, the state of California presumes that joint custody is most often in the best interests of the child. It is up to the parents to either work together to create a joint custody and visitation plan that works, or to file for a different custody arrangement.
Best Interests of the Child
Under California Family Code, Section 3011, judges evaluate several factors before making custody decisions in the best interests of the child. These factors include the child’s health, safety and welfare; any history of abuse; the nature and amount of contact the child has had with the parents; and drug use by either parent. In addition, the judge will take into consideration the opinions and preferences of children if she deems it in their best interest. The law generally provides this option for children 14 or older, but the court will hear from younger children in certain cases.
Caring for a child is the responsibility of both parents regardless of the custody arrangement. California provides mothers with the right to financial support for their children. Factors determining the amount of support include the salaries of each parent and the amount of time the child spends with each parent. Mothers with primary or sole custody generally receive more monetary support than those with joint custody. For divorced parents, child support requirements are determined during the divorce proceedings and included in the final decree.
Under California Family Code Section 7610, an unwed mother automatically gains custody of her child upon birth. No legal action is required to assert her custodial rights. She is solely responsible for providing for her child and making decisions regarding his living arrangements, health care and education. Barring any court order, the mother determines what, if any contact, the father has with the child. However, unless paternity is established, the mother has no right to child support from the father in this situation.
As with married or divorced mothers, custody rights for an unwed mother include financial support from the child’s father. However, proof of paternity is required in order to initiate child support proceedings. When parents are married, paternity is automatically established when a child is born. An unwed mother needs to prove paternity in order to establish her rights to child support from the birth father; to access to his family medical records and health insurance; and to any of his government benefits. Fathers can voluntarily fill out a declaration of paternity at birth or after the mother initiates child support proceedings. If the paternity is contested, California law allows a mother to file papers in family court ordering the presumed father to take a paternity test.
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