How Can Unmarried Fathers Secure Custody or Visitation Rights?

The Uphill Battle of Unmarried Fathers in America

American courts take the view that it’s in the best interest of a child to have both parents in their lives. However, it may not seem like this when you’re struggling to secure rights with your child. This process is even more challenging for fathers who were not married to their child’s mother. So, how can unmarried fathers secure custody or visitation rights?

Unfortunately, it’s frequently an uphill battle. A father who is not married to their child’s mother doesn’t have assumed parentage when their child is born. This is the first hurdle they must overcome. Even after this is done, securing child custody and visitation rights as an unmarried father can remain difficult if the mother wants to complicate things.
Fortunately, you do have options.

Is It Possible to Take a Collaborative Approach?

If you ask any judge or attorney in America, they’ll tell you that courts prefer when parents get along. All decisions relating to child support, custody, and visitation are made with the best interests of the child in mind. Since the legal system typically defers to these interests being best served with both parents involved, they’ll typically approve mutual parental agreements.

This may feel impossible at the moment. Perhaps you and your former partner have been unable to get along for some time. However, it’s often still worth the effort to attempt a collaborative approach. This can simplify everything from establishing paternity to securing a fair parenting time agreement.

For instance, two parents who decide to work together can sign a voluntary acknowledge of paternity. In doing so, the father will be able to seek custody and visitation — while the mother can file for child support. Courts will typically also greenlight most custody and visitation agreements as long as they’re beneficial for the child.

Establishing Paternity in Order to Secure Rights

Since they do not have assumed paternity, unmarried fathers seeking custody or visitation must start by establishing paternity. As discussed already, the simplest path to this outcome is for both parents to sign an acknowledgment of paternity. Unfortunately, men will sometimes find themselves in situations where their child’s mother doesn’t want them present.

In these cases, you’ll need to take your case to court. A judge can order genetic testing to determine paternity if necessary. Once this is complete, the father has the right to seek custody and a parenting time (i.e., visitation) order. When going through this process, there are some important considerations to account for: 

• Filing a complaint: Securing custody or visitation rights as an unmarried father starts with filing a court complaint. This will need to be done in the county where your child lives 
• Best interests of the child: Regardless of who the parents are, courts focus on the best interests of the child. You must show the court why being with you is best
• Custodial types: There are two types of custody you can seek, legal and physical. The former focuses on making important life decisions, the latter on who the child lives with
• Temporary orders: Courts will sometimes hand down temporary custody and visitation orders that remain in effect until the trial concludes
• Potential meditation: Courts may require unmarried parents to attend mediation, but they are not required to reach an agreement

Clearly, this approach is much less desirable than a collaborative approach. However, don’t make the mistake of thinking prior disagreements preclude coming to an agreement. In some cases, all it takes is for a family law attorney to get involved. Once the mother knows you’re serious about your parental rights, she may be more agreeable to a mutual decision. 

When paternity is established, you can start exercising your rights as a father — but remember, child custody and visitation are not automatic. Working with a legal professional — either before or after paternity is established — can prove incredibly beneficial to your case.

What if the Mother Is Violating Your Parental Rights?

It’s an unfortunate reality, but unmarried fathers are often treated as second-class citizens when it comes to their children. We frequently see this in the outcomes of custody, support, and visitation disputes — but frequently, such mistreatment is coming directly from their child’s other parent. So, what happens if your court-ordered parental rights are being violated?

Your first idea might be to contact the local police. After all, the legal system gave you your rights — so why wouldn’t you involve law enforcement when someone is violating these rights? However, it’s important not to contact the police unless your child or another individual is in imminent danger. Police typically cannot enforce orders without court involvement.

Fortunately, this doesn’t mean you don’t have options. If the other parent isn’t complying with a court order, file a complaint with the court. At this point, the court will decide whether the other parent is in contempt — a decision that can lead to fines or jail time. In some areas, you may also be entitled to make-up time. If violations continue, courts will eventually involve the police.

What’s Your Best Option for Securing Parental Rights?

Regardless of your situation, it’s important to remember that you have rights. Even unmarried fathers can secure child custody and visitation rights. Whether this is done collaboratively with an Affidavit of Parentage or through court involvement, the best option for securing rights is typically to seek legal guidance.

While there are certainly many resources online, unmarried fathers always have an uphill battle ahead of them. Even when paternity is determined, court involvement is still necessary to secure your rights. At Bailey & Terranova, P.C., our team of dedicated family law attorneys is here to help. Contact us at 517-236-7187 to schedule your confidential consultation.