Child Custody Laws for Unwed Parents

By Lisa Sefcik paralegal

Child custody laws for unwed parents are really no different than for parents who were once wed. Unwed parents can also seek the same types of custody arrangements as divorced parents, as long as the arrangement is in the best interest of the child. However, in the case of unwed parents, there is one obstacle that might prevent both parents from exercising custody rights, and that is the process of establishing legal paternity.

Establishing Paternity: It's Important

When it comes to establishing paternity for purposes of child custody, unwed parents are subject to different legal presumptions than parents who were married. When a child is born in wedlock, a woman's husband is presumed to be the father of the child, therefore, making the issue of custody largely irrelevant (unless a woman's husband suspects otherwise). However, when parents are unwed, there are certain legal mechanisms in place that allow a man to be named as a child's legal father. Until a child's paternity is established, the mother is usually granted sole custody.

Acknowledgment of Paternity

In cases where a man feels certain he is a child's father and the mother also agrees, he can sign an acknowledgment of paternity (AOP) form. This form is typically provided at the hospital when a child is born but can also be signed afterward if the father is not present at the time of birth. The AOP is entered by a court, and a man becomes the child's legal father. This gives him the same rights to seek custody or visitation as a divorced man whose child was born in wedlock. It also gives the father the same legal responsibilities, including that of financially supporting the child by means of child support.

Contested Paternity

Child custody becomes problematic in cases where paternity is contested. It's commonplace to hear of single mothers filing a paternity suit against a putative (assumed) father for purposes of receiving child support. However, if a man suspects that a child is his and the mother refutes his claim, he too can seek a court order for paternity testing to establish his right to have a legal relationship with a child through custody or visitation.

Child Custody Arrangements

The same custody arrangements available to divorcing couples are also available to unwed parents. All state laws provide for some type of joint custody arrangement. Joint legal custody means that both parents can make important decisions for the child, such as his education, health care and religious upbringing. Joint physical custody assumes that both parents have substantial physical contact with the child. In most cases, it's unrealistic to assume that physical custody of a child can be split 50/50, so one parent will often be the child's primary custodian. Sole custody may be granted to one unwed parent; however, usually this is when exposure to one parent endangers a child's physical or mental well-being.

The Best Interest of the Child

Regardless if a child's parents were once wed or never wed, the court will always act in the best interest of the child. The "best interest" standard applied by the court places the rights of the child over the rights of the parents. Courts may consider many factors when deciding on a custody arrangement. However, common factors courts look at are the child's age (and sometimes gender), the mental and physical health of the child and both parents, the emotional bond between the child and parents, and the ability of the parents to provide for the child. In the case of older children, the court can consider which parent the child wishes to live with, if the child is mature enough to express this to the court. The court will also consider if the child is conditioned to a certain home environment, school and community.

About the Author

