Child Custody Magazine - Issue V-355

 

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Child Custody And The Unmarried Couple


Child custody is already as complicated as the battle of married couples who decide to divorce. Between unmarried couples, the complications of the custody battle move on to another level. There are entirely new and different issues in unmarried child custody cases.

The primary question is who gets custody of the child if the couple is never married?

Ordinarily, unmarried fathers often fight for contact and child custody visitation rights to their children. Unmarried mothers most often battle for child support from the father.

Unmarried fathers and child custody

Different states in the U.S. have different perspectives on child custody cases, especially between couples who are not married. In most states, however, the unmarried mother is awarded sole physical custody, unless the unmarried father makes moves against such decisions.

Often, the father is left with very few options at the start of the separation to have access to his child. This is assuming that the mother denies him access.

If the mother denies the father access to his child, the father will need to fight for such right through the family court. This would involve the establishing of his paternity of the child and subsequently, petitioning the court for his share of parental rights.

At best, the unmarried father can only gain some form of child custody and visitation rights. This is dependent, too, on the motherís cooperative attitude on agreeing out of court settlements.

Unmarried mothers and child custody

In the case of unmarried mothers, most of their battles are often centered on the childís financial support from the father.

Usually, paternity finding by a court is required before a father is forced to pay child support. Without it, it is impossible to enforce.

On the other hand, voluntary child support payment from the unmarried father without the paternity finding is on shaky grounds. If the father decides later to stop paying voluntarily, the unmarried mother cannot do anything.

Rights of unmarried fathers

Legally, the unmarried father faces an uphill battle in trying to gain access to his child. This is because he does not have the automatic right to spend time with his child compared to a married father.

When parents divorce or separate (whether married or unmarried), it is a common occurrence that the father is denied access to the children by the mother. When the issue is resolved in the courts, the issue of child support overpowers that of the father having to gain access to their children.

Nowadays, some lawyers argue that a mother denying the unmarried father access to the child may not be in the best interest of the child. This position would require explanation, and could be used against the mother if the custody is disputed.

An unmarried father would need to first establish his paternity (either by a signed voluntary declaration, or by filing a paternity action) before he can gain rights of access and responsibilities to his child or children. (This is true in California.)

All in all, child custody is a messy (and expensive) issue if the parties involved are not even married. Of course, things are way different if they are settled by the parents in the name of the children, and preferably outside of the court.


 

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