The Rights of Unmarried Parents in Custody Cases

The definition of what constitutes a family is flexible. There could be a single parent raising the children. Grandparents or other relatives may be filling those parental roles as well, and many couples decide to have children without being married.

Unfortunately, when those family units fracture and the parents split, the issue of custody becomes complicated.

In many jurisdictions, the legal and physical custody of a child defaults to the birth mother.

That means the father does not possess any automatic rights until paternity is legally established. Even if this is resolved between the parents, the courts will need that legal proof before rendering a judgment on custody.

Providing that proof and following filing deadlines is just the first step towards setting up a custody arrangement. What follows are the standard considerations in the child’s best interest.

If you find yourself in this type of custody case, you will benefit from speaking with the family law attorneys at Davis & Associates. We’ve helped many mothers and fathers work out custody arrangements that take care of the children and provide an equitable outcome for the parents.

Establishing Legal Paternity for Unmarried Fathers

Despite how things start in a relationship, they don’t always end harmoniously. When kids are involved, things can get even more contentious when one parent tries to use custody as a wedge issue. When that happens, the “burden of proof” regarding paternity shifts to the father.

Before asking a family court judge to make a recommendation for custody, a father can establish his parental rights through the following options:

Voluntary Declaration of Parentage (VDP): If the father and the mother agree on paternity, they can sign a VDP. This often happens at birth, but it can later be filed with a state’s vital records office.

Genetic/DNA Testing: A DNA test to confirm paternity can be requested by either parent.

It can also be court-ordered. This test is highly accurate and is typically conducted via a simple cheek swab.

When the mother contests paternity, the father needs to immediately file a lawsuit or petition under their state’s Uniform Parentage Act (UPA). Once filed, a family court judge will review the genetic evidence and issue an order establishing paternity. That opens the path to legally request custody or visitation.

How Courts Determine the Best Interests of the Child

As you enter a custody case, you’ll hear a lot about the “best interests of the child.”

That determination is made by the judge assigned to your case, but that judge will not be “making things up.” They will make their decision based on the evidence that is presented to them.

That evidence is based on the following criteria:

Safety and Welfare

If there is any history of domestic violence, substance abuse, neglect, or abandonment, that will become the most important factor in helping a judge determine what is in the best interests of the child.

Primary Caregiver

Your judge will also look at who has historically managed the daily caregiving tasks up to the moment of the breakup. That caregiving includes preparing meals, bathing, and handling medical and educational needs.

Stability of the Home

It is important to a family court judge which environment provides the greatest continuity in the child’s life. That means a consistent home environment and an established school district. Stability can also include sibling relationships and proximity to extended family.

Parent-Child Bond

What is the existing emotional connection between the child and each parent? That will be evaluated.

Parental Fitness and Cooperation

The court assesses each parent’s mental and physical health. They will also factor in the parents’ financial ability to provide care and their willingness to create a positive relationship with the other parent.

The Child’s Wishes

Older children are often included in the judge’s final decision on custody. Depending on their age and maturity, teens may have their preferences heard by the judge.

Having an experienced family law attorney on your side from the start of this process will ensure that your side is heard.

Child Support Obligations for Non-custodial Parents

When the court rules on custody, it will grant legal custody to one or both of the parents.

That custody allows the designated parent to make all the decisions regarding a child’s education, health, and welfare. In a joint legal custody arrangement, both parents will share in decision-making. Physical custody can determine where the child lives. This can also be shared jointly.

As for child support, payments are calculated using a guideline formula that accounts for both parents’ incomes and the amount of time the child spends with each parent.

Typically, these obligations last until the child turns 18 and graduates from high school.

The support payments can be automatically deducted from the parent’s salary or made through automatic electronic funds transfers.

Modifying Custody Orders When Circumstances Change

Once a custody order is in place, both parties are expected to enforce it. There will always be room for flexibility, especially when it comes to visitation schedules. Parents can agree to change holidays or extend visitation times. However, when those changes need to become permanent, you can request a modification to a custody order.

Those modifications need to be presented to the judge, who will approve the newly drafted orders. The modifications can also apply to child support if there is a change in salary or job.

If the original orders aren’t being followed, the court should address that as well. That can happen if a parent refuses to allow visitation or disregards a child support order.

Like modifications, you can petition the court to issue a new order compelling the parent to comply. Failure to do so can result in fines and possible jail time. Because any matter involving custody must be approved by the court, it is always in your best interest to seek support from experienced legal counsel.

The lawyers at Davis & Associates can help with those situations. If you’re dealing with a custody issue or need to modify an existing order, we can help.

Call to schedule a consultation today to get your questions answered.