Child Custody, Visitation and Unmarried Fathers

Do Unmarried Fathers Have Parental Rights?

Have you ever wondered whether unmarried fathers have rights as parents? It’s almost a trick question. If a father is listed on a baby’s birth certificate or has otherwise been proven to be the father, his rights parallel those of the mother. If, however, the father has not been legally recognized as such, things can become much more complicated.

When a married couple has a child together and later separates or divorces, each parent has rights and duties relating to that child. They both have responsibilities to support the child, and they both have the right to request custody and visitation.

Birth Certificates and Affidavits

When a baby is born to unmarried parents, the simplest circumstance exists when both parents’ names are listed on the birth certificate. Even if this step is not taken, most states have a fairly simple process by which an unmarried man may be legally recognized as the father. Usually, this process involves both parents filing sworn statements that the man is, indeed, the father of the child.

Paternity Suits

If the parents do not agree, a lawsuit must be brought to determine the father of the child. This is called a “paternity” suit. Either the mother or a man who alleges he is the father can bring a paternity suit. In most states, if the mother or child receives some form of state aid, the state also has the right to bring a paternity suit.

The Result of a Paternity Determination

After a man has been legally established as the father of a child, he has all the rights and responsibilities of a parent pertaining to that child. He has a duty to support his child financially, and this duty can be enforced by a court in the form of an order to pay child support. He also has the right to request custody of or visitation with his child.

The term “custody” denotes where the child lives and who has the right to make decisions about major issues in the child’s life. If a child lives mainly with one parent, that parent is often referred to as the “primary physical custodian.” The term “visitation” refers to the right of a parent who is not the primary custodian to visit with the child. The court can set restrictions on how, when, and where visitation can occur.

In making decisions about custody and visitation, courts use the “best interest of the child” standard. In other words, the court considers the interests and needs of the child over everyone else, including the parents. Most state laws also list factors that the court uses to determine custody and visitation issues, but the main focus is on what is best for the child.

Either parent can be ordered by the court to pay money to support the child. This is known as “child support.” Most courts use a formula to calculate child support that considers several factors, such as the income, assets, expenses, and needs of each parent, as well as child-related expenses. Not paying court-ordered child support is a criminal offense in every state. If found guilty, the non-paying party can be sent to jail.

If you need to learn about the specific laws that apply to unmarried fathers’ rights in your situation, contact an attorney who is licensed in your state.

Krista Duncan Black
This article was written by Krista Duncan Black. Krista is a principal of TwoDogBlog, LLC. An experienced lawyer, writer, and business owner, she loves helping people and companies connect with others. You can find Krista online at and LinkedIn.

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