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Does fatherhood convey any custody rights when the parents are not married?



In the eyes of the law, both parents have equal rights to custody of a child born in wedlock, but that is not necessarily true for a child born to unmarried parents. In most states, the unmarried mother has the presumption of primary custody of her child, while the unmarried father does not have any automatic rights. He does have the right to prove his fatherhood, and once he has done that, he can request the court to grant him custody or visitation rights. This process is easier if the mother agrees he is the natural father.

Establishing Fatherhood

The easiest way to establish fatherhood is for the mother to place the father's name on the child's birth certificate. If the mother does not do this, there are other ways to legally claim fatherhood. Acceptable methods of establishing fatherhood vary by state, including the following:

  • A document naming the father and signed by the mother
  • Living with the mother and child, and identifying yourself as the father
  • Paternity testing

Paternity testing is the best way to establish fatherhood if the mother does not agree you are the father. Federal law requires that this testing be done at the request of either parent when paternity is in dispute.

Custody Rights After Establishing Legal Fatherhood

The unmarried father will not generally have the right to sole physical custody of his child, as long as the mother is a fit parent. But courts today recognize that children benefit from a relationship with both parents regardless of marriage status. Many states and the federal government have been developing initiatives to support a father's right to participate in his children's lives.

Fathers can petition the court for some rights, such as:

  • Joint legal custody, so he can share in decisions about the child's education, health and general well-being.

  • Joint physical custody, so his child can live with him part of the time.

  • Visitation, so he can have the opportunity to get to know his child and establish a relationship.

Find more information on differences between both legal and physical custody.

The courts will consider the best interests of the child in deciding whether to award custody or visitations rights fathers. Joint legal custody is commonly granted, but the court considers various factors, including the home environment, when considering granting joint physical custody or visitation.

If the mother dies or is found unfit, the legal father's rights will often take priority over other individuals who may want custody, including the mother's relatives.

Responsibilities of Fatherhood

Establishing fatherhood doesn't just give you rights—it also gives you responsibilities. You may be required to pay child support, as well as medical and educational expenses.  If you are being denied access to a child you believe is yours, talk with an experienced child custody attorney to begin establishing your rights.