Who Has Child Custody When Parents Are Unmarried?

Ending a relationship is always challenging, especially when you and your significant other share children together. Unfortunately, figuring out how to divide parenting time is not nearly as easy as it is to determine who gets to keep the silverware or the furniture. If you are dealing with a child custody issue after a break-up, you must consider each parent’s parental rights, their relationship with your child, and several other factors. 

If you are trying to figure out what will happen to your child custody arrangement after a break-up, make sure you know which factors the court considers before making any custody orders. 

Establishing Parental Rights 

For married parents, determining parental rights is usually very straightforward, but when a child’s parents are unmarried, it can be much more difficult to determine parental rights. And, in order to obtain any type of custodial rights, you must first establish that you have parental rights to the child in question.  

Without establishing paternity and legitimation, an unmarried father will not automatically receive parental rights, even if he is the child’s biological father and has assumed a paternal role in the child’s life. A biological mother, on the other hand, is automatically granted parental rights. Likewise, if a married woman gives birth, her husband is presumed to be the father and he receives parental rights automatically.  

In order to establish parental rights, a father must file an action for legitimation. In that same action the court can make a determination of custody, parenting time and child support. Unfortunately, the law does not provide for any temporary parenting rights unless the mother consents. That may mean in some cases that you cannot visit with your child until you get a final order. 

Once a father obtains paternal rights, he has the right to pursue custody in the same way a mother would. Both mothers and fathers have equal rights to child custody. 

How Is Child Custody Determined? 

Child custody is determined on a case-by-case basis, which means there is no standard arrangement that all unmarried couples use when they break up. Parents have the option of setting a parenting plan through mediation or outside of court, but if they are not able to reach an agreement on their own, they will have to bring their case before a judge. 

In court, the judge will consider the following factors before determining child custody: 

  • The child’s relationship with each parent; 
  • Each parent’s health and ability to care for the child; 
  • The child’s relationship with each parent’s community, household, and other family members; 
  • If one parent acted as the child’s primary caregiver in the past; 
  • The child’s wishes, if the child is deemed mature enough to express an opinion; 
  • Any history of domestic violence or abuse; and 
  • Ability to provide for the needs of the child. 

What Are Our Custody Options? 

Depending on each of these factors, the judge may decide to grant joint or sole physical custody. In a joint physical custody arrangement, the parents will share parenting time equally. If one parent is granted primary physical custody, the other parent will be scheduled specific visitation time with the child on a regular basis. In rare cases, usually when child abuse has occurred, the court may grant one parent sole custody without allowing the other parent any visitation rights, or only supervised visits with a social worker present. 

Let Our Child Custody Attorneys Help You 

If you and your child’s other parent are no longer together and you are concerned about the next step, our firm is prepared to help. Dreyer Law has extensive experience working with unmarried parents in a variety of complex or problematic custody situations. If you need help with your custody case or modification, we can help. 

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