While determining child custody can be difficult in any scenario, cases of unmarried parents tend to be especially challenging. Although divorce issues such as alimony and division of property do not need to be addressed, there are other issues regarding paternity and visitation rights that can complicate the process and make it more unique and problematic than more traditional cases, particularly for fathers.
Child custody is court-determined legal guardianship of a child under the age of 18. Child custody laws are created and enforced by individual states and are based on what is in the best interest of the child. In most cases, both parents continue to share legal child custody but one parent gains physical custody. Because child custody is not determined by the federal government, the laws in each state have varying factors ( Read about Arizona’s for example)
There are numerous things that go into determining who receives custody, and whether one person will get sole custody, the two parents will split joint custody, or if the custody will go to a third party. Every state looks at all history of drug use and abuse, domestic violence, child abuse, child abandonment and child neglect. Some states will even mandate a drug test for parents with a history of drug use. Other significant factors are the mental and physical condition of each of the parents, as well as the family dynamics and relationships that each parent has fostered with the child and with each other.
Unfortunately, when the parents of a child are unmarried or were partners in a common law relationship, they lack primary legal rights that divorced parents have. A major topic in regards to unmarried parents it the issue of paternity. Even when a man is named the father on a child’s birth certificate, there is no presumption of his paternity if the mother and father are not married. Because the mother has no inherent legal right to recover child support from the father, she must first establish paternity. The expected father may comply voluntarily, or the mother might have to petition the court to mandate a paternity test.
Another issue is that of child support, and how court determinations may be unfair to fathers. When unmarried parents separate without first securing a court order to establish child custody and child support, fathers face harsher child support default guidelines. Without a primary court order, time shared between father and child is established at zero, child support payments are generally increased, and fathers who refuse to pay child support are subject to harsher penalties than if the parents had been married. Also, mothers in this scenario may change visitation agreements at any time, except those which are subject to a court order.
If you are an unmarried parent and wish to establish your parental rights and protect your child, it is imperative that you consult with a child custody and child support attorney who is familiar with the laws in your state.