Who Gets Automatic Custody of a Child if Parents Arenít Married?


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Married parents often have more custody rights to their children than in the situation of unwed parents. It is important to understand what rights are present in this situation. If you would like to be involved in your childís life, you may have to take proactive steps to ensure this is a possibility.

Married Parents

Generally, if the biological parents of a child are married, they have the same rights regarding the child. This includes equal rights to have the child with them and spend time with them. They also have the right to make decisions about the child, such as where he or she lives and attends school. If only one of the parents is the biological or legal parent and the parties divorce, the step-parent may or may not have the right to continued visitation with the child, depending on state law. Some states will permit a former step-parent to pursue visitation rights if he or she had an existing relationship with the child and the child would be harmed if the relationship terminated.

Automatic Rights in the Mother

Most states declare that if the parents are not married that the mother has automatic custody rights. This rule applies when the mother and father were never married to each other, the mother was not married to anyone else at the time of the childís birth and no existing custody or visitation order with the child is in place.

For example, Texas law states that an unmarried woman who gives birth to a child is the sole physical and legal custodian of the child. This rule applies until there is a court order that specifies otherwise. Because the mother has automatic custody, she has the rights to: decide who sees her child and to what extent, restrict visitation with others, enroll the child in school, seek public benefits for the child and make important decisions regarding the child.

Fatherís Assertion of Rights

If the father wants to establish paternal rights, he or she is free to do so. This process is typically initiated by establishing paternity in court. Paternity can be established in different ways and different states have various ways that this can be accomplished. One way is to publicly acknowledge paternity. The father may have signed acknowledgment of paternity when the child was born. The father may take a DNA test to establish paternity. Some states will consider a father to have the same legal rights as a mother when his name is on the birth certificate. Because there is such disparity on this issue, fathers who want
legal rights to their children should talk to a family law lawyer experienced in their jurisdiction.

Factors the Court Considers

When the court makes determinations regarding custody or visitation, it considers many factors. Most states have rules that do not allow courts to give custody to the mother just because she is the mother. They may state that the sex of the parent is not a factor. However, today, it is more common for women to have primary custody of their children. Nevertheless, the court considers a number of factors, such as the mental and physical health of each parent, the work schedule and earnings of each parent, whether the parent has a history of domestic violence or substance abuse, who has provided care up until the point of the court case, which parent is more likely to encourage a positive relationship with the other parent, the childís relationship with each parent and extended family, the moral character of the parents, the childís preference and other relevant factors. The court ultimately tries to make decisions that are based on what is in the childís best interests.

Parents Who Live Together

If the parents are unmarried but live together, they may still have some of the same legal issues as unmarried parents who are not cohabiting. The mother may still have automatic custody in these rights. The father may be able to better show that he had a meaningful relationship with the child in this situation in the event of a parental breakup. If a man has a relationship with his partnerís child and they later break up, he may not have a right to pursue visitation rights even if he had an established
relationship for years, depending on state law.

Contact a Family Law Lawyer

Contact a family law lawyer in your area if you have questions on asserting your parental rights or learning what your rights are.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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