Parents who are unmarried, or who have never been married, enjoy the same parental rights as parents who are married, divorcing, or separating. Likewise, unmarried couples with children are subject to the same laws as married parents with regards to how they will share custody of their children.
However, unmarried parents must go through a slightly different procedure to bring custody matters to court and have them resolved. Instead of a divorce, unmarried parents must go to court and initiate a parentage action in which they can legally establish a parent-child relationship and then ask the court to make—or approve––decisions regarding custody and visitation.
To illustrate, imagine that you have a 10-year old son whom you love dearly. You were there when he was born, and you were even there to put a quarter under his pillow for the tooth fairy when he lost his first tooth. But, you and the mother never married.
Recently, you and the mother have fallen out and are not getting along. You tell her that you still want to continue to see your child. But, she tells you that you can’t and that because you were never married you have no legal grounds that would allow you to have visitation with your child.
You are, understandably, extremely upset and convinced that she is wrong, but you don’t know what to do.
Well, here is what you need to know about child visitation and unmarried fathers:
For better or worse, the mother in the example above is right, but only to a point. In most states, when a child is born out of wedlock, the father has no right to visitation until he obtains a court order, even if his name is on the birth certificate.
This means that in the eyes of the law, the mother has, in fact, sole legal and physical custody of the child and is free to refuse visitation unless there is a court order legally establishing a parent-child relationship between the father and the child.
No presumption of fatherhood
Typically, when a child is born to parents who are married to each other, the husband is by law presumed to be the father of the child. But, when a child is born to an unmarried mother, the law makes no presumptions as to who the father is.
Furthermore, in some states, it doesn’t even matter if a man is paying child support for a child. If there is no court order to establish paternity, time-sharing, and parental responsibility between the parents, the mother gets to deny this man visitation with her child.
Returning to the example above, even though you may qualify for the father of the year award, you may be unable to see your child until you file a petition with the court and legally establish paternity, time-sharing, and court-ordered visitation rights.
An experienced family law attorney can help
Paternity cases are complicated and involve extreme emotions. Retaining an experienced family law attorney is essential. If you are dealing with a custody and visitation issue involving an unmarried father, contact an experienced family law attorney in the state in which you live for more precise information regarding child visitation and unmarried fathers in your state.