Child Custody and Visitation Rights for Unmarried Fathers

Biological parents have a right to seek child visitation or child custody. It doesn't matter if the child's parents were married when the child was born. Like other child custody decisions, courts use the best interest of the child to decide disputed child visitation or custody cases involving unmarried fathers. Unless evidence indicates otherwise, courts making child visitation decisions presume that involvement of both parents benefits the child. The visitation rights of unmarried fathers often depend on their relationship with the child, any history of child abuse, drug and alcohol use, and other such factors.

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

First Step: Establishing Paternity

Fathers who were not married when their child was born must legally establish paternity in order to gain access to father's rights. Often, this simply means both parents signing and filing an acknowledgment of paternity with the appropriate state agency or court, either at the time of the child's birth or afterward. In disputed paternity cases, a legal process including DNA testing will conclude with a court order stating whether the man in question is the child's biological father.

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

Child Visitation and Child Custody Agreements

Either before or after a legal process has begun, many parents negotiate a parenting agreement, parenting plan, or timesharing schedule. The exact name for it varies depending on what state and county you are in. This agreement or timesharing arrangement can include a wide variety of details regarding custody.

Custody comes in two forms: physical and legal. A parenting agreement can include where the child will live most of the time (physical custody) and specifics on the other parent's visitation periods. It can also include which parent will make decisions regarding the child's education, health care or religion (legal custody). Finally, parenting agreements should include procedures for changing the arrangement if needed. There is generally a lot of room for the parents to negotiate a plan. The primary obstacle is that the parents must agree on a plan to submit to the court, which may be difficult depending on the nature of the parents' relationship.

Visitation and Custody Rights of Unmarried Fathers: Court Orders

If the parties are unable to agree on a parenting agreement, either parent may petition the court for child visitation or custody help. Parents who can agree to a parenting plan may file it with a court, asking the judge to approve and incorporate it into a court order on visitation and/or custody. Having the agreement become part of a court order allows either parent a direct way to enforce his or her parental rights.

If the parents cannot agree on visitation or custody arrangements, either one may ask the court to grant their request through a contested hearing. Courts deciding visitation and other custody issues focus on the best interest of the child.

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 are recognizing that it is beneficial for both parents to be involved in the raising of a child. As already mentioned, in most jurisdictions there is a presumption that joint custody is in the best interests of the child. This means both the mother and father would have significant time and input in raising the child. In addition, if a father shows that the mother is unfit to raise the child and/or that he has been the child's primary caregiver, courts are more likely to grant primary custody to the father. Courts will decide physical and legal custody issues according to state law and the specific circumstances involved. 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 the issue carefully.

Court-Ordered Modifications

Should arrangements need to change, the court can modify the child visitation or custody order. This occurs either after both parents agree to the change or after one parent petitions the court to make the change. Some states allow parents to agree on modification to visitation arrangements without a court's approval. However, even where such agreements are recognized, a court order that modifies an existing child custody arrangement is easier to enforce and is the best way to ensure visitation and other rights for unmarried fathers.

How to Proceed

To learn more about unmarried fathers' custody rights and access to visitation, see these resources on state paternity laws, as well as these state child custody and visitation resources.

An Attorney Can Help Protect the Custody and Visitation Rights of Unmarried Fathers

Each state has its own laws surrounding child custody, child visitation, and the role of unmarried fathers. While unmarried fathers have parental rights, understanding the boundaries and limitations of those rights is important in being able to achieve the outcome that you want. Contact a local child custody lawyer today to learn more about your custody and visitation rights and to get you on solid ground as you move forward.