When a child is born out of wedlock, the mother usually has sole custody of the child, and the father has no legal right to the child until paternity has been established. This type of situation prevents the mother from seeking child support from the father, and also prevents the father from being awarded child custody or visitation.
If the child’s biological father wishes to obtain visitation rights or custody of his child, there are a few ways to go about doing so. The simplest way is to fill out the birth certificate forms with the mother shortly after the baby is born. Otherwise, the father can fill out a Voluntary Acknowledgement of Paternity form.
In the instance that the mother disputes the paternity of her child, the father can petition the court to establish paternity. He may also contact the Child Support Enforcement Division within the jurisdiction for assistance. The assistance of an experienced family law attorney in this type of situation is recommended.
What are the General Assumptions for Parental Rights?
Once the paternity of the child is established, the unmarried father will have the same parental rights as those of his married father counterpart. This means that he can pursue custody or visitation with his child, and it also means that the mother can seek child support.
First and foremost, the court will always use the best interest of the child standard when considering child custody cases. Interaction with both parents is considered ideal, though this is not appropriate in all cases. For instance, if there is a history of abuse or neglect in one parent’s background, it is unlikely the court will award that parent custody, or visitation for that matter.
It is wrongly assumed that mothers are automatically given preference in custody cases. There are many factors that contribute to a court’s decision regarding placement of a child, and visitation rights of parents. If the court finds an issue with the moral character, living situation, or financial status of one or both parents, it will base its custody decision on what is best for the child.
The best interest of the child standard also applies to parents who live in different states. Most states adhere to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, the jurisdiction where the child lives is where custody matters are held. If the child has been away from that state for longer than six months, the jurisdiction will usually change. Visitation rights and relocation matters are also held in family court.
Ideally, parents who are unmarried should do their best to compromise with one another to find a reasonable custody arrangement they both agree upon. If you need assistance developing a parenting plan with your child’s other parent, an experienced family law attorney can help.
What are Some Common Visitation Rights for the Father?
The judge presiding over a child custody and visitation case will determine what type of custody arrangement is appropriate for the child. An evaluation of the father’s history with the child, his financial resources, location, and mental state will be taken into consideration. Courts generally regard mutual involvement of both parents in a child’s life as paramount if the circumstances allow for such an arrangement.
Circumstances that would prevent visitation may include a history of violent offenses, abuse, sex crimes, or other red flags that may threaten the wellbeing of the child. In certain circumstances that do involve a questionable history of the father, supervised visitation may be awarded, depending on a variety of factors. However, absent of the aforementioned issues, visitation rights may be awarded to the father who seeks them.
What is the Burden of Proof in Child Visitation?
In cases that the custodial parent opposes visitation rights of the other parent, it is up to the custodial parent to show how an award of visitation would not be in the best interest of the child. For example, if they can show that the visitation would:
- Result in the child being put in danger;
- Cause undue emotional distress/trauma on the child; and/or
- The parent requesting custody does not have the lifestyle to accommodate regular visitation.
Custody and visitation cases can be highly contentious between parents, and judges are aware that untruths may be presented in court. For this reason, solid proof, rather than rhetoric, as to why a parent is unfit for visitation or custody, is absolutely necessary.
For example, a parent that requesting visitation does not live in a safe place and the child will not have regular access to food or a bed to sleep. Even if the parent has all of those securities, if they only work nights and must sleep during the day, it is more difficult to establish that the parent could have visitation. Ultimately, these factors will be weighed and decided by the court, so the outcome may vary from case to case.
Should I Consult an Attorney for Issues with Child Visitation Rights?
If you have any questions regarding visitation rights of unmarried parents, you should contact a family law lawyer in your jurisdiction. An experienced family law attorney will review your case and provide guidance on how you may proceed with your visitation rights and concerns. Your lawyer will also represent your best interests in court, and help you to obtain a reasonable agreement.