When formerly engaged R&B stars Ciara and Future hit a Southern California court in May 2016 to duke it out over custody of their son, Future Zahir Wilburn—a.k.a. Baby Future—things had already gotten a bit heated between the former celebrity couple. Future had publicly groused about Ciara’s new celebrity relationship with Seahawks star quarterback Russell Wilson in the Twittersphere. Ciara’s lawyers had emailed serious reservations about Future’s dad-skills to his lawyers.
Ciara asked the court to award her sole custody of their son, and to deny visitation rights to Future. She thought she had a pretty good case, arguing that Future was a bad dad and a worse person. She lost. Quickly and decisively. The court awarded joint custody and regular visitation to Future.
There really wasn’t much doubt about the outcome, regardless of Future’s alleged shortcomings. California courts have a strong bias toward granting dads visitation rights—at least when the biological parentage is not at issue.
What other factors determine who gets custody—and why—when unmarried couples split up? And is there anything couples can do at the start to cross that bridge before they come to it?
Moms, Dads, and custody claims
One fact is never in doubt: the identity of the biological mother. So in California (and every other state) when couples break up, the biological mom has a valid custody claim by default. Of course, mothers can lose custody, but it takes behavior that clearly puts the child at risk to make that happen.
The dad is another story. A father has just as much right to custody as the mother, but when unmarried couples split up in California, parentage must be determined for the dad before he can get custody (or be compelled to pay child support). That’s true even if the unmarried dad is listed as the father on the birth certificate, as this alone doesn’t legally establish parenthood. In fact, even if he can prove that he’s the biological father of the child, he still needs to establish legal parentage in order to have any parental rights or responsibilities.
It can be a bit of work to establish parentage for dads. There are several ways to go about it in California, all of which are going to take time and some persistence.
Things get even more complicated if the mom is married when she has the child, but the husband is not the biological father. That’s because, according to California Family Code 7611, whoever she’s married to when the child is born is automatically considered the child’s legal dad—regardless of who provided the genetic ingredients necessary for creating a new life.
Two mommies, two daddies
Gay marriage has complicated things even more. Generally speaking, if the couple is married when the child is born, they’re both considered legal parents. In the case of adoption, both partners will be listed as parents if they’re married at the time of adoption.
For unmarried gay couples, if one of them is the biological parent, things can get rather sad post-breakup for the non-biological parent. Most courts are going the way of the Michigan court that ruled a woman had no rights to visit her former partner’s child, who she helped raise for more than five years prior to their breakup. The ruling was issued despite the fact that the couple couldn’t have married if they’d wanted to, since gay marriage wasn’t legal in Michigan when they were together. (The court did say that the outcome might have been different if there had been proof that the couple had wanted to get married but couldn’t).
Hope for the best, but plan for…
Stuff happens. Couples break up. Even when they have kids together. So it might be a good idea to educate yourself about child custody, and craft an agreement about co-parenting, should anything go wrong.
Broaching the subject of child custody while you’re still together is can be tricky, though it can also help provide piece of mind and even boost the health of your relationship overall. Regardless, once you get past that big emotional hurdle, you’ll be pleased to know there’s no shortage of advice about how to make a plan that will (hopefully) work for everyone. In fact, some professionals provide reasonably priced options to put it all together for you.
Whatever you do, try to put the kids first. Your breakup is hard for you—it may be even harder for them.