Unmarried Fathers’ Rights to Child Custody

Oct 9, 2020 | Paternity


It seems like unwed celebrities are announcing pregnancies more and more these days. And this trend isn’t just commonplace among the rich and famous. A growing number of unmarried couples are raising children together in the same home. Of course, custody isn’t an issue if they stay together, but things can get contentious if they break up. 

Facts & Stats on Unmarried Couples

A recent Pew Research Center study revealed that the percentage of adults ages 18 to 44 who have ever lived with an unmarried partner has surpassed the percentage who have ever been married 59% vs. 50%. The study also found that more than 50% of cohabiting adults in this age demographic were raising children, including about one-third who were living with a child shared with their current partner. And of the 3.79 million births in the U.S. in 2018, 39.6% were to unmarried women, which equates to an estimated 750,000 unwed fathers.

Mothers’ Rights vs. Fathers’ Rights

When children are involved, this complicates matters, especially when it comes to an unmarried father’s rights. Life is full of uncertainty and while it isn’t healthy to always expect the other shoe to drop, it helps to be prepared. If you aren’t married and your partner is expecting or you already have children, it’s important to know your rights.

Child Custody for Fathers: Know Your Rights

Mothers are considered inherently important to their children’s wellbeing, and so they typically get primary custody when parents are unmarried. The U.S. Supreme Court has affirmed the constitutional protection of a father’s legal rights to a child if he has established a substantial relationship with them. For example, when a mother gives a child up for adoption and the biological father proves paternity, he can be awarded custody. In about 27 states and the District of Columbia, a man may be presumed to be the father of a child in any of the following circumstances: 

  • He and the child’s mother are or were married to each other, and the child is born during the marriage or within 300 days after the marriage ended
  • The man has acknowledged his paternity in writing
  • He is obligated to support the child, either by voluntary agreement or court order
  • While the child is a minor, the man has resided with the child and openly claimed him or her as his biological child

Unmarried Fathers’ Rights Custody and Visitation 

If you plan on being actively involved in your child’s life, establishing paternity the legal way is necessary before you can petition for custody or visitation rights. Keep in mind courts will not recognize a claim based on a home paternity test — the paternity test must be a legal one with a chain-of-custody process. Here are additional tips for establishing paternity: 

  • Make sure your name is on the baby’s birth certificate. If you aren’t at the hospital when the baby is born, fill out a Voluntary Acknowledgment of Paternity form
  • If the child’s mother contests your paternity, contact a child-support-related government agency in your state or petition the court to establish paternity. As mentioned, court-ordered paternity test results are a mandated step in establishing legal paternity
  • If there is a paternity registry in your state, add your name to it right after you learn of the mother’s pregnancy

Other Factors That Play a Role in Custody and Visitation 

In addition to legally-established paternity, the following factors play a role in court decisions: 

  • Income
  • Moral character of each individual
  • Who acts as the primary caregiver in various aspects
  • Preferences of the child, in some instances
  • Illegal activity 

Unwed biological fathers who wish to attain primary or joint custody should consult with a family-law attorney and start the legal process. If the mother is found to be unfit, it is necessary to petition for full legal custody. In addition to legally establishing custody and visitation rights, paternity testing is useful for other important reasons

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