Child Custody and Visitation Rights for Unmarried Fathers

Biological parents have a right to seek child visitation or child custody. It does not matter whether the child's parents were married when the child was born.

In child custody and visitation decisions, courts weigh evidence based on the best interests of the child standard. The same standard applies whether the child custody and visitation issues involve married or unmarried fathers. Unless evidence shows otherwise, courts making child custody and visitation decisions presume that the involvement of both parents benefits the child. The parental rights of unmarried fathers will depend on several factors underlying the child's best interests standard. These may include the father's relationship with the child, any history of child abuse, domestic violence, and alcohol and substance abuse.

The following is a summary of unmarried fathers' child custody and visitation rights, with information on establishing paternity and drafting parenting agreements.

First Step: Establish Paternity

Fathers who were not married when their child was born must legally establish paternity before a family court will grant them father's rights. Paternity represents a finding that you are the legal father of the child.

Often, this means unmarried parents signing and filing a voluntary acknowledgment of paternity affidavit with the appropriate state agency or court. This can occur at the time of the child's birth or afterward.

In disputed paternity cases, an unmarried mother, father, or the state can file a paternity action in court. A paternity action is sometimes called a parentage action. In this action, the court can require the father to appear in court and submit to DNA testing to determine paternity. If the genetic testing confirms paternity, then the court will issue a court order declaring the father the biological father and the legal parent of the child. The court will also direct the appropriate state agency to place the father's name on the child's birth certificate.

Once paternity is established, a father may pursue child custody and/or visitation rights. Many states offer simultaneous filing for paternity recognition and visitation and custody rights.

Child Custody and Visitation: By Agreement

Either before or after a legal process has begun, many parents negotiate a parenting agreement, parenting plan, or timesharing schedule. The exact name of a parenting agreement will vary depending on the state and county where you live. This agreement or plan can include various details about custody and care of the child.

In most states, custody can be broken into two concepts: physical custody and legal custody. Physical custody will refer to where the child lives most of the time. Legal custody will identify which parent will decide about the child's education, health care, and other needs.

Legal custody also comes in two forms: sole legal and joint legal custody (shared custody). In sole legal custody, one parent has legal custody. This parent's address will be the child's address for school and other purposes. This parent can make any major decisions for the child's education and health care. In joint legal custody, the parties share legal custody of the child. In other words, when the child is with the child's mother, she serves as the legal custodian. When the child is with the child's father, he serves as the legal custodian. The joint custody arrangement normally establishes protocols for making decisions together in their agreement or plan to avoid confusion and conflicting choices. This may include giving one parent or the other the "final say" in decision-making for the child.

Parenting agreements or plans should include procedures for modifying the agreement's terms. For example, the plan should cover modifying the child's custody process. It should likewise explain the process for seeking a change to parenting time or the timesharing schedule, changing the arrangement if needed.

Parenting agreements or plans will also include child support and other financial expenses of the child. It should address how a party can file to change child support payments.

Unmarried couples may have success negotiating a plan through their attorneys. They may also seek third-party mediation to help their efforts. The primary challenge is that the parents should agree on all plan terms to submit it to the court. When the parties have agreed on all terms, the court will review the plan they filed and may approve it and make it a court order in the future.

Child Custody and Visitation: Contested Hearings

Sometimes parents have difficulty agreeing on all terms of a parenting plan. This may stem from a lack of communication, differing viewpoints, or ongoing hostility in the parents' relationship. If the parties cannot agree on a parenting agreement, either parent may file a motion in court asking that the court approve their preferred plan. They may also file for sole custody or visitation and not include any plan.

The custody case will proceed to a contested hearing or trial when the parents disagree. If the parties reach a negotiated settlement before the hearing, they can request that the court review, approve, and adopt the settlement as a court order. If the parties disagree, the contested hearing will go forward. The hearing will resemble a trial in court. Juries do not sit and hear family law cases. Parents may have attorneys or may represent themselves. They must comply with the rules of evidence and any local authorities of the court. The parents will often testify. They may call other family members as witnesses. State custody determination laws may permit the court to appoint a guardian ad litem. This is a neutral third party (often an attorney) who will interview the parents and the child and issue a report recommending what they believe is in the best interests of the child.

After hearing all the witnesses and reviewing all the evidence, the court will determine what is in the child's best interests and issue its ruling. The court can adopt or modify either of the parties' preferred plans. It can also declare one parent the residential parent and legal custodian and the other parent the noncustodial parent. In either case, the court will decide the parenting time schedule that both parties must follow.

Whether the parties agreed or the court held a contested hearing, the court will issue a court order setting forth each side's legal rights and responsibilities. Placing the terms in a court order allows either parent to enforce their parental rights directly. If they believe the other parent is not following the court order, they can file a contempt-of-court motion.

There is a common belief that it's rare for unmarried fathers to win sole custody of a child already being raised by the mother. The truth is more complex than that. Increasingly, courts around the country recognize that it is beneficial for both parents to be involved in raising a child. In some jurisdictions, there is a presumption that joint custody is in the best interests of the child. This means both parents would have significant time and input in raising the child. Also, courts are more likely to grant primary custody to the father if a father shows that the mother is unfit to raise the child or that he has been the child's primary caregiver.

Courts will decide physical and legal custody issues according to state law and specific circumstances. The bottom line is that unmarried fathers can certainly seek to play a role in their child's life and expect the court to consider these issues carefully.

Child Custody and Visitation: Modifications

If custody and parenting time arrangements need to change, the parties can agree and request that the court adopt the new agreement.

If one party files a motion to modify the child visitation or custody order, then the court will set the matter on its contested hearing or trial docket. In some states, the court standard of review may require a showing that there has been some substantial change in circumstances and that the new proposal is in the child's best interests.

Some states may allow parents to agree on changes to visitation arrangements without a court's approval. But, even where such agreements are recognized, it may be better for the parents to ask the court to adopt it. This will make future enforcement of the new order more likely.

Next Steps: Consider Talking With an Attorney

You can learn more about unmarried fathers' custody rights and access to visitation by reviewing resources on state paternity laws, as well as these state child custody and visitation resources.

Each state has laws about child custody, child visitation, and the role of unmarried fathers. While unmarried fathers can pursue parental rights, there are benefits to understanding the legal process involved. You should consider getting legal advice from a local child custody lawyer.

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  • You can represent yourself in a paternity case, but establishing paternity can be emotionally and legally complex
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Don't Forget About Estate Planning

If you are in the midst of a paternity case, it may be an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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