Child Custody and Visitation Rights for Unmarried Fathers

In child custody cases, courts weigh evidence based on the best interests of the child standard. The same standard applies whether the case involves a married or unmarried father. Unless evidence shows otherwise, courts making child custody and visitation decisions presume that the involvement of both parents benefits the child.

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

How To Get Custody of a Child as a Father

A father must meet a few basic requirements to get custody of his child, including:

• Have legal recognition as the child’s father, whether through marriage at the time of birth or a paternity action

• Demonstrate fitness for parenthood and that custody rights would serve the child’s needs

• Complete a court process for child custody or visitation, which results in a court order

Each of these steps can present challenges. For example, the child’s other parent may contest paternity or dispute your parenting skills in a custody battle. Many fathers enlist the help of a family law attorney to reduce stress and uncertainty while pursuing custody.

The parental rights of unmarried fathers will depend on several factors underlying the child's best interests standard. These factors may include the father's relationship with the child, any history of child abuse, domestic violence, and alcohol and substance abuse.

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, unmarried parents sign and file 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.

Paternity Disputes

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.

Does Getting Paternity Grant Custody Rights?

No, paternity alone does not give you rights to access or care for the child. Getting custody of your child is a separate legal process. Paternity is a prerequisite to these parental rights.

Once paternity is established, a father may pursue child custody and 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. Other terms for this agreement are "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. For example, both parties may negotiate parenting time around their work schedules and events in the child’s life.

Options for Custody Arrangements

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, the mother is the legal custodian when the child is with her. The father serves as the legal custodian when the child is with him.

The joint custody arrangement normally sets protocols for making decisions together. The agreement can 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.

Negotiating a Co-Parenting Agreement

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 visitation 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, which may stem from:

• A lack of communication

• Differing viewpoints

• Ongoing hostility in the parents' relationship

The parties might not ultimately agree on a parenting agreement. If so, 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. There is still a chance for the parties to 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.

What To Expect in a Child Custody Hearing

The hearing will resemble a trial in court. Juries do not sit and hear family law cases. Parents may have child custody attorneys or 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. They then issue an evaluation recommending what they believe is in the best interests of the child.

The court will hear all the witnesses and review all the evidence. The judge will determine what is in the child's best interests and issue a 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.

Can Fathers Get Full Custody of Their Child?

Yes, unmarried fathers could get equal or even sole custody in some circumstances. 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 he shows that the mother is unfit to raise the child. Or, he may gain this custody if he has been the child's primary caregiver. Custody decisions prioritize the child’s well-being regardless of their custodial parent’s gender.

Courts look at state law and specific circumstances to decide physical and legal custody issues. The bottom line is that unmarried fathers can certainly seek to play a role in their child's life. 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.

One party can file a motion to modify the child visitation or custody order. The court will set the matter on its contested hearing or trial docket. In some states, the court standard of review may require you to show 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. Review resources on state paternity laws. You can also check these state child custody and visitation resources.

Each state has laws about child custody, child visitation, and the role of unmarried fathers. Unmarried fathers can pursue parental rights in all states. There are benefits to understanding the legal process involved. Consider getting legal advice from a local child custody lawyer.