The law empowers biological parents to seek child custody or visitation rights regardless of the parent’s marital status when they gave birth to the child.
The child’s interests are central when a court determines custody or visitation issues. The standard does not change if it involves unmarried fathers. Courts make custody and visitation decisions with the presumption that the involvement of the two parents helps the child, except when evidence says otherwise.
As an unmarried father, your parental rights depend on numerous factors underlying the child’s best interest standard. They may include your relationship with the child and any history of substance misuse, domestic violence, or child abuse.
This piece explains unmarried fathers’ child custody and visitation rights. It also sheds light on how to establish paternity and draft parenting agreements.
Establishing Paternity
You must legally establish paternity if you were unmarried when your child was born before a family court can grant you a father’s rights. Paternity helps to establish that you are the legal father of the kid.
It usually entails unmarried parents signing and filing a willing acknowledgment of paternity affidavit with the court or appropriate state agency. It can happen during the child’s birth or afterward.
An unmarried parent or the state can file a paternity action in court in disputed paternity matters. A paternity action is also known as a “parentage action.” The court can order the father to appear before it for DNA testing to determine paternity during this action.
The court will issue an order declaring the father the child’s legal parent and biological father if the genetic testing affirms paternity. Furthermore, the court will direct the concerned state agency to insert the father’s name in the child’s birth certificate.
You can pursue child custody and visitation rights after establishing paternity. Most states allow simultaneous filing for paternity recognition and custody and visitation rights.
Custody and Visitation by Agreement
Before or after starting a legal process, you can negotiate a parenting plan, time-sharing schedule, or parenting agreement. Your location determines how a parenting agreement is termed. The plan or agreement may capture numerous child custody and care details.
Most states categorize custody into physical and legal. Physical custody is where the child primarily lives, while legal custody entails the parent deciding the child’s education, healthcare, and other essential needs.
Also, legal custody has two subcategories—sole legal, and joint/shared legal custody. A parent with sole legal custody can decide on the child without consulting the other parent, and the child will retain this parent’s address for every purpose.
In most cases, parties share joint legal custody of the child. The joint custody system often highlights protocols for how parents can approach decision making, which get memorialized in a written parenting . The purpose of outlining a decision making process, or what happens in the case where there is disagreement, helps set expectations and avoid confusion. In certain cases where the parents anticipate having disputes, one parent may be awarded final decision making to ensure decision’s as to a child’s wellbeing can be timely made .
Parenting plans or agreements should entail procedures for adjusting their terms. For instance, it should state how to modify the child’s custody process. Similarly, it should explain how to seek a change to parenting time or time-sharing schedule.
Also, parenting agreements will include child support and other financial demands of the child. It should capture how a party can demand a change in child support payments.
Unmarried couples should negotiate through their lawyers to make the process seamless. Alternatively, you may also demand third-party mediation. Parents should agree on every detail before submitting the plan to the court.
The court will review the submitted plan and approve or make a court order in the future.
Contested Hearings in Child Custody and Visitation
Sometimes, parents can only agree on some terms of a parenting plan. Miscommunication, untamed hostility, or differing viewpoints may be accountable for this disagreement.
If this happens, either parent may file a motion in court, demanding the court endorse their favored plan. Alternatively, they may not include any plan and instead file for sole custody and visitation.
If the parents disagree, the custody issue will move to a contested hearing or trial. However, the parties can request that the court review, approve, and adopt their settlement as a court order if they can reach a negotiated settlement before the hearing. But if they still disagree, the contested hearing will proceed.
The hearing resembles a court trial. Juries do not sit and entertain family law matters. The parents may hire attorneys or represent themselves. They must adhere to all local authorities and rules of evidence.
The parents mainly testify but may invite other family members as witnesses. State custody determination laws may empower the court to choose a guardian ad litem. The guardian ad litem is usually a neutral third party, often a lawyer, who will interview the partners and the child and submit a report. The report will recommend what the attorney thinks is best for the child
After listening to all witnesses and reviewing every piece of evidence, the court will ultimately determine what is in the child’s best interests in its ruling.
Sometimes, the court adopts or adjusts either of the parents’ preferred plans. The court can also pronounce a parent as the legal custodian and residential parent, and the other parent as the noncustodial parent. It will decide the parenting schedule the two parents must comply with in each case.
The court is responsible for setting forth each side’s legal rights and roles, whether through the parents’ agreement or contested hearing. Memorializing the agreement terms in a court order permits either parent to enforce their rights directly. An aggrieved party who believes the other parent disregarded the court order can file a contempt-of-court motion.
Many widely believe it is almost impossible for an unmarried father to win sole custody of a child the mother is already raising. However, the truth is more complex than this assumption. Courts in the United States increasingly see the need for both parents to be involved in a child’s upbringing.
Some jurisdictions believe joint custody is in the child’s best interest. It allows the two parents to contribute significantly to raising the kid. Further, courts are likely to grant primary custody to an unmarried father if he has been the child’s primary caregiver or if he proves that the mother is unfit to raise the child.
Notably, state law and surrounding customs will guide the court’s decision on physical and legal custody matters. Ultimately, unmarried fathers can seek to play a pivotal role in their child’s upbringing, and they can be sure the court will treat their case based on its merits.
Modifications to Child Custody and Visitation
If there is a need to change parenting time arrangements, the parties can approach the court to adopt the new agreement. However, the court will set the case in its contested hearing if one party files the motion to adjust the child custody or visitation order.
The court standard of review in some states may demand proof that there has been some substantial change in situations and the new proposal prioritizes the child’s best interests. Some states allow parties to agree on modifications to visitation arrangements without the court’s intervention. Despite that, it is safe to approach the court for the adoption of the new agreement.
Speak with an Attorney
Getting more input and guidance from a local child custody attorney is wise because every state has laws on child custody, visitation, and the place of unmarried fathers. “A lawyer will give you tailor-made suggestions and help achieve your aims while making sure to follow the letter of the law,” says attorney Matthew F. Dolan of Dolan Divorce Lawyers, PLLC.
