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Can I get child support & custody while still living together? Or do I need to wait until after the father moves out?

Fullerton, CA |

The father of my child and I currently live together but he is in the process of moving out (he should be out within 1-2 months). We currently have separate rooms & break up household expenses 50:50 except that he doesn't consider our daughter's healthcare premiums & DR costs household expenses (which I pay for and comes out to about $300 a month). He works nights Wed-Sunday and I work days M-Th & Sat.

On the days where I have to work and he worked the night before he is falling asleep while watching our daughter, who is only 18 months old. At this time he is refusing to help me pay for child care saying he can't afford it (he makes one and half times what I make) and that he doesn't trust anyone else to watch our child. I can not afford child care without his help. I looked into low income child care but I make too much money.

Unfortunately on top of sleeping while caring for the baby, he also refuses to give her a bath, brush her hair, brush her teeth, and take care of her basic hygiene needs. The baby's father also has issues w/ depression and smokes pot (he got a misdemeanor for it about 3 yrs back). I've been keeping a journal of the issues as they come up and I am worried about my daughter's safety with him sleeping all the time. I know he loves his daughter dearly and I don't believe he's being malicious but I'm worried. I also think his quality of life will improve if he can get proper sleep instead of attempting to stay awake while watching our daughter. Is it possible to get child support and custody before he moves out or do I have to wait until he moves out to take care of it?

He is also stating that when he moves out he would like to see the baby everyday and have her with him overnight on his days off but I don't think he is capable of taking care of her needs. I would like to offer him daily visitation rights but I don't want him to have any custody but I know he will never agree to this. What can I do?

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Attorney answers 2


You can seek both custody and support orders BEFORE you actually separate. The California Family Code requires parents to provide for their children's health, education and shelter. It doesn't distinguish between separated parents or parents living together.

You should meet with a Family Law attorney as soon as possible to better understand your choices. California Law also provides that if you need the services of a lawyer in order to obtain benefits for children, the court has the power to not only award child support, but to make an award that the other parent help pay for your attorney.

Typically, the process is as follows: You would file a petition to establish a parental relationship with the biological father (Paternity action) and as part of that petition you would seek 1) Custody; 2) Child Support orders including health care costs and child care expenses to allow you to work and 3) Attorney fees to obtain the orders.

In determining child support, the court would consider both parents' income as well as the amount of time the each parent is responsible for the care and custody of the child.

In determining custody, the court would take into account which parent is most fit and in whose custody the child's best interest would be. Yes, keep your journal as up to date as possible as it will help the court in making a determination of what is in the child's best interest.

Best of luck to you and your litttle one.


You can seek an order while you are still together, but the support order is likely to be deferred until you are actually separated. Part of support considerations are the costs of child care expenses, which are ordered in addition to basic child support. Those expenses, and reimbursement for one-half of uninsured medical costs are likely to be ordered while you are still living together.

The way the custody determination is made is as follows. Each of you tell the court what you expect the parenting plan to be and you are referred to a Family Court Services mediator, who tries to help the two of you work out an agreement that is in the best interests of the child. Please read the guide I wrote for Avvo on preparing for such a mediation -

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