Who Has Custody of a Child When the Parents Are Not Married?

Who Has Custody of a Child When the Parents Are Not Married - Unmarried Mothers Custody Rights - Unmarried Fathers Rights

Wondering who has custody of a child when the parents are not married?

In this article, we’re going to cover custody for unmarried parents, including:

  • what are a mother’s custody rights
  • what are the father’s rights to custody
  • how to establish paternity and get custody for the father
  • how to establish paternity and get child custody from the father

So, let’s dig in.

Table of Contents

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Who Has Custody of a Child When the Parents Are Not Married?

When it comes to who has custody of a child when the parents are not married, it usually goes to the mother.

Per the child custody laws, when the child is born out of wedlock, the mother gets full custody.

The only reason that a father’s custody rights kick in is when the father:

  • establishes paternity
  • files a petition for child custody

Until paternity gets established, an unmarried father’s rights are non-existent.

After the paternity gets proven, he still has to determine his custody status.

Until this happens, the mother has full custody of a child when the parents are not married.

What Are An Unmarried Mother's Custody Rights?

Unmarried and married parents often have the same child custody issues.

But there are some key differences for an unmarried mother’s custody rights.

Which makes you wonder, “What are an unmarried mother’s custody rights?”

When it comes to who has custody of a child born out of wedlock, the courts grant full custody for mothers.

When kids are born out of wedlock, the mother’s rights are that she has full legal and physical custody of the kids.

When the parents are not married, the mother’s rights include making decisions about:

  • where the child lives
  • what school the child goes to
  • what child care the child will get
  • what medical treatment will the child have
  • what extracurricular activities the child will do
  • where the child can vacation and travel

Related: Grounds for Full Custody of Child

With No Custody Agreement Father Took My Child

We have already established who has custody of a child when the parents are not married.

But what happens when, with no custody agreement, the father took my child?

When a mother’s custody rights are full custody, it’s not legal for the father to take the child.

If a father takes your child with no custody agreement, it can be considered parental kidnapping.

But can a parent kidnap their own child?

Or can a father take a child from the mother?

Can a mother keep the child away from the father?

Either way, the father cannot legally take his child from a mother with full custody.

And if the child is born out of wedlock, then the mother can keep the child away from the father.

If the father takes the child without a custody agreement, you should call the police.

After you call the police, contact your family law attorney.

Related: Reasons a Judge Will Change Custody

What To Do When An Absent Father Wants Visitation

So your child’s absent father wants visitation.

But since the child was born out of wedlock, are there any absent parent visitation rights?

Since unmarried mother’s rights give them full custody, the father has no legal right to the child.

This includes a father’s custody rights and visitation rights.

The only way an unmarried father can get custody and visitation rights is to establish custody.

As a mother with full custody, you do not have to give an absent father visitation to a child born out of wedlock.

But the father can get child custody rights if he:

  • establishes paternity
  • files for child custody rights

Let’s summarize what happens when an absent father wants visitation.

If the child is born out of wedlock, the father has zero custody and visitation rights.

But he can get rights by proving paternity and filing for child custody.

Related: Does It Matter Who Files for Divorce First?

Unmarried Fathers Rights - Visitation Right for Fathers - Absent Father Wants Visitation - Father Custody Right

What Are An Unmarried Father's Rights to Custody?

Do unmarried fathers have rights?

Child custody for fathers not married looks bleak.

Often, having a child out of wedlock doesn’t mean that parents are split up.

Many unmarried parents have children and stay together.

But there is also a lot of unmarried couples with a child splitting up.

Either way, what are an unmarried father’s custody rights?

Having a child out of wedlock means that there is no legal presumption of paternity.

This means that the courts do not recognize the father as the father until paternity gets established.

Without establishing paternity, a father has no:

  • rights to visitation
  • child custody rights
  • ability to make decisions for the child

Related: How a Mother Can Lose a Custody Battle

If both parents are on the birth certificate, that’s the easiest way to establish paternity.

But sometimes mothers will not add fathers to the birth certificate.

In this case, the father can contact the Child Support Enforcement Division.

If the father is not on the birth certificate can he fight for custody?

A father can fight for his parental rights to custody after he proves paternity.

If a father can prove paternity, he then has to show the courts that he is a suitable parent.

And he has to prove that he is capable of taking on custody of a child when parents aren’t married.

After establishing paternity, an unmarried father’s rights are the same as a married father’s.

An unmarried father’s rights to child custody do not give him custody.

He will still have to petition a court to establish a father’s rights to custody.

Unless the mother is unfit, the father will want to petition for joint or shared custody.

Or, he can allow the mother to keep custody of the child and request visitation rights.

If the mother is clearly unfit, the father can file a petition for full custody.

Related: If There Is No Custody Order In Place Can I Take My Child?

How to Establish Visitation Right for Fathers

When a child is born out of wedlock, the child custody rights of fathers are non-existent.

When a child is born out of wedlock, two things happen:

  • a mother cannot seek child support from the father
  • the father has zero visitation or child custody rights

So, what does someone need to do to establish visitation rights for fathers?

There are a few things the father can do.

Related: Getting Custody Back From Grandparents

What If Both Parents Are On The Birth Certificate But Not Married - If Both Parents Are On The Birth Certificate

What If Both Parents Are On The Birth Certificate But Not Married?

If both parents are on the birth certificate, then they both have equal rights to the child.

If the father is on the birth certificate, this gives the unmarried fathers rights to the child.

But, it’s important to note that a father’s rights are not the same as a custodial parent’s rights.

Meaning that establishing paternity does not determine the father’s custody status.

An unmarried father designated as the father has the same custody rights as a married father.

If two people are raising a child born out of wedlock in the same home, custody is not an issue.

The father will need to petition the court to get child custody if:

  • the parents are not living together
  • the parents are not raising the child together

Related: How Can a Mother Lose Custody of Her Child?

How Long Does a Father Have to Sign a Birth Certificate?

A father has to sign the birth certificate at the hospital.

A father cannot sign the birth certificate at a later date.

This is because when you sign a birth certificate at the hospital, they send it to the state health department.

Even if the child is born out of wedlock, both parents can sign the birth certificate.

If the father does not sign the birth certificate, he can still sign a voluntary acknowledgment of paternity.

A voluntary acknowledgment of paternity is a document that both parents sign stating that this man is the biological father.

If the mother won’t sign this, then the father will have to petition the courts for custody rights of the child.

Conversely, a mother can file a lawsuit to establish the paternity of the father.

Either way, establishing paternity how to get custody rights for fathers who are not married.

Related: Moving Out of State With Child No Custody Agreement

Does the Father Have to Sign the Birth Certificate?

The father does not have to sign the birth certificate.

But if the mother wants to collect child support, she can.

Even if the father does not want to be involved, she can file a lawsuit to establish paternity.

But a mother cannot get child support without paternity tests establishing paternity.

(When having a child out of wedlock, the mother cannot put the father’s name on the birth certificate if not married.)

After the courts have established paternity, the father is now obligated to financially support the child.

The establishment of paternity does not ONLY benefit the mother’s rights.

The establishment of paternity gives the father custody rights to the child.

So, now the mother has to share custody or visitation with the father.

Related: Irreconcilable Differences

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