Fighting for Child Custody between Unmarried Parents

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 What Is Child Custody? How Is Child Custody Determined?

Child custody refers to how divorced parents are court-ordered to parent their child. These orders determine who will be primarily responsible for making decisions on behalf of the child, as well as where the child will live for the majority of the time. The parent who is awarded the most custody rights is referred to as the custodial parent, while the other parent is referred to as the noncustodial parent.

Generally speaking, the custodial parent is responsible for the day to day care of their child. The child lives with them most of the time. The custodial parent is responsible for making decisions regarding:

  • Healthcare;
  • Education;
  • Religious indoctrination; and
  • Various other decisions related to being the main caretaker.

The noncustodial parent generally receives visitation rights, and may be ordered to make child support payments in order to help relieve the financial burden of properly caring for a child.

First and foremost, all decisions regarding the child will be made according to the child’s best interest standard. What this means is that what is considered to be best for the child will always be placed over the wants and needs of the parents involved. The court will only make custody decisions based on what is best for the child affected by those decisions.

Some common examples of what is considered when determining child custody include, but may not be limited to:

  • Each parent’s relationship with the child;
  • Each parent’s history of interactions with the child;
  • Whether one parent has been acting as the child’s primary caretaker;
  • The child’s background, such as their attachment to their home, neighborhood, and school;
  • The mental and physical health of each parent;
  • The mental and physical health of the child;
  • Each parent’s financial state;
  • Each parent’s residence;
  • Whether the child has any special needs, such as health, mental, or medical;
  • The wishes of the parents, if they have both agreed to a particular custody arrangement; and
  • The child’s wishes, when the child is old enough and capable of stating a preference.

Who Is Awarded Child Custody When the Parents Are Unmarried?

If both of the child’s parents have been legally established, disputes regarding custody and child support will most likely be handled as if the parents were legally married. When a child is born to an unmarried mother, the mother is automatically granted sole custody in most states and circumstances.

Legally speaking, a father who has not established paternity has no legal right to their child without a court order. There is no presumption of paternity, meaning that unwed fathers are not by default assumed to be biologically related to their child. Because of this, unmarried fathers can be prevented from being awarded child custody or even child visitation rights.

At first glance, this seems to be incredibly discriminatory and unfair to the unmarried father. This system is as such in order to prevent unmarried mothers from pursuing child support from the father, which would be unfair without first establishing paternity so the father may receive rights.

What Will Likely Happen If There Is a Custody Battle Between Unmarried Parents?

Once again, what will likely happen if there is a custody battle between unmarried parents depends heavily on how each state handles unmarried child custody. Generally speaking, the court will order shared custody. Other states may award joint custody with the condition that one parent acts as the custodial parent.

It is considered to be fairly uncommon for one parent to not be granted any visitation rights at all. Such circumstances would generally only occur if one parent was found to be abusive or otherwise unfit to parent. The court would need to have strong reason to believe that it would actually be detrimental to the child’s wellbeing if they were involved with the noncustodial parent.

If the child’s mother disputes the father’s claim to paternity, the father would need to petition the family court in order to establish his paternity. Additionally, the father would need to petition and establish paternity if the unmarried couple does not live together. Once paternity has been definitively established, the unmarried father is entitled to all of the parental rights as a married father would be.

In order to avoid a lengthy custody battle, it is important for both parents to do their best to remain amicable and willing to compromise. Another way to avoid a custody battle would be to work together in order to create a reasonable and agreeable custody arrangement that the court will approve of. Above all else, a custody battle would not be in the child’s best interests.

What Are Some Other Issues That Unmarried Parents May Experience?

Overall, the biggest issue that will cause other issues for unmarried parents would be unestablished paternity. Most states commonly use a voluntary acknowledgement of paternity, which is completed through a form signed by both the mother and the supposed father. It is then filed with the appropriate state office which is generally the vital records office. This office places the father’s name on the child’s official birth certificate. A voluntary acknowledgement of paternity can be done at the hospital at the time of the child’s birth, but may also be signed at a later date.

Parents who are unmarried will need to decide which parent will claim the child on their taxes, as only one parent is allowed to do so. Additionally, if one of the parents is receiving child support, they cannot claim the support as income. The paying parent cannot deduct that support from their taxes.

Another issue would be if you are a non-legal parent to a child, you may not have any legal rights to making decisions for the child. An example of this would be if you were parenting your partner’s child. Legal parents are granted priority. As such, the best course of action would be to adopt the child and become their legal parent.

Child support may become an issue. In order to properly care for their shared child, the custodial parent has the right to receive financial support from the non-custodial parent. This remains true even when the parents are unmarried. However, if a stepparent adopts the child, the other biological parent is dismissed from being required to make child support payments.

Another issue would be if the unmarried parents live in different states. Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the child’s home state is the court who has jurisdiction in child custody matters. If the child has lived in a different state for six or more months, their home state no longer has jurisdiction.

Do I Need an Attorney For Child Custody Between Unmarried Parents?

If you are not married to your child’s other parent, and are experiencing issues related to child custody, it is advised that you consult with an experienced child custody lawyer. The child’s best interests must be placed above all else, and state laws vary widely in terms of how child custody between unmarried parents may be handled.

An experienced and local child custody attorney will be best suited to helping you adhere to your state’s specific laws and guidelines. They will ensure your child’s best interests are being protected, as well as your parental rights. A child custody attorney will also be able to represent you in court, as needed.


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