In order to determine a mother’s rights in child custody, a court first considers whether the child was born out of wedlock or not. Custody rules that apply to unmarried parents vary depending by jurisdiction.
Child custody is often complicated, but when the parents have a child out of wedlock, establishing parental rights can make the process of establishing child custody even more complicated.
When two people are unmarried and have a child together, by law the custody of the child is automatically awarded to the mother of the child. However, there are options for the biological father of the child to pursue custody.
The biological father of the child can petition the court for child custody rights. As the primary caretaker of the child, the mother has complete authority to make all decisions regarding the child’s welfare, including:
- The right to decide who sees the child and for how long;
- The right to decide where the child resides;
- The right to enroll the child in the school of her choosing;
- The right to make the child’s medical decisions;
- The right to receive public benefits for the child; and
- The right to do anything else a parent with legal custody may decide, such as:
- Religious affiliation;
- Travel; and/or
- Any other important aspects of the child’s life.
However, with advances in same-sex rights, there is a growing number of non-traditional families who have custody issues. In this case, it is possible that the mother’s rights in child custody will include two mothers. One mother could have carried and given birth to the child, and the other could have donated the egg or simply been a supportive partner and parental figure.
As the law in this is not set and clear like it is for heterosexual parents, it is harder to say what is a relevant factor in deciding the custody rights of two mothers. However, fundamentally, the same basic principles will apply and it should not impact the rights of the parents in the situation.
How are a Mother’s Rights Determined for a Child Born to Married Parents?
As for children born to married parents, many courts in the past favored mothers when awarding child custody. However, as gender roles have changed and more women work outside of the home, these past assumptions no longer apply. Today, most custody laws are gender neutral, meaning they do not favor mothers over fathers.
Instead, courts must consider the child’s best interests when awarding custody. However, it is not an easy matter to figure out how to win custody as a mother, but it is good to keep in mind that most courts, even ones in different states, will focus on similar factors when considering a child’s best interests. These factors include:
- The child’s physical and emotional health;
- The strength of the parent-child relationship with both parents;
- The stability of each parent’s home environment;
- The child’s connection to his or her school and community;
- The child’s relationship with other family members, such as grandparents;
- Whether a parent hasn’t paid their child support;
- Each parent’s ability to provide for the child’s emotional and physical needs;
- Each parent’s willingness to actively parent the child;
- Any evidence of domestic violence or child abuse; or
- The child’s wishes, if the child is at an appropriate age.
Additionally, it is important to understand the difference between physical and legal custody. Physical custody is defined as the time you physically spend with your child. When you have physical custody of your child, you are responsible for making basic, day-to-day parenting decisions.
However, legal custody involves your right to make important decisions for your child, such as the decisions listed above involving education, health care, and religion. Although one parent may have primary physical custody, both parents typically share joint legal custody. In fact, in many states, joint legal custody is presumed to be in the best interests of the child.
Can Court Custody Orders Be Changed or Modified?
In child custody situations, it is in your best interests to maintain a polite and cooperative relationship with your child’s other parent, if they are still in the picture. It is important to remember that any open hostility toward the child’s other parent may hurt your custody claim or result in a reduction in your physical custody time.
Further, once a custody order or agreement is finalized, you must follow all of the conditions within the order. However, court-ordered child custody decisions may be changed or modified if there has been a significant change in circumstances since the order was finalized. Courts will modify an existing child custody order when there has been a significant change in circumstances, such as:
- A parent violates the existing child custody order;
- There is evidence of domestic violence or child abuse in the home;
- One parent has relocated, making the existing child custody order impractical;
- One parent has lost the ability to care for the needs of the child; or
- When the child’s needs have changed, and the current order is no longer in their best interests.
In order to modify an existing child custody order, you must first file a petition with the court. The procedure to modify an existing child custody order varies from state to state, and, thus, you will likely need to seek the assistance of an experienced and well-qualified family law attorney that specializes in child custody to guide you through the process.
Should I Hire an Attorney to Assist with Obtaining Custody of My Child?
As can be seen, child custody is often a very complicated process. Although having an attorney is not a requirement, especially in cases where the child was born out of wedlock and the father is out of the picture, hiring a well-qualified child custody attorney may still be in your best interests.
If you are involved in a child custody battle with the other parent of the child or are seeking to modify an existing child custody order, the process is much more complicated and an experienced family law attorney is much more necessary.
An attorney near you that specializes in child custody will be able to guide you through the entire process of obtaining or modifying an existing child custody order, as well as help you build a strong case for custody if your dispute goes to court.