Differences in Cases Involving Married and Unmarried Parents
Most states currently have laws that explicitly state that there is not a preference for either the mother or the father to have primary custody. Historically, mothers were more often granted custody of the children because they were usually the primary care providers.
Today, state law may dictate that a judge should not consider the gender of the parents when making a custody decision. Other states have a presumption that joint custody is best for children unless there is evidence that this will not be in the child’s best interests. However, there are differences regarding custody when the parents are not married. Most states have laws that find that the mother has custody of the child by default. In order for the father to have rights to the child, he may first have to establish paternity. Paternity can be established in a variety of ways, including:
- Signing the birth certificate
- Signing an acknowledgement of paternity
- Signing an informal paternity statement
- Having genetic testing performed
The ways to legally establish paternity vary by state, so be sure to consult with a family lawyer licensed in your state to determine how to legally establish paternity. Once paternity is established, then the court can proceed to make decisions regarding the child, such as for child support or child custody.
In contrast, fathers who are married to the mother have the same rights to the child as the mother. Until there is a legal custody agreement to the contrary, both parents will have an equal right to make decisions and spend time with their children. In paternity cases, there may be a father who is recognized under the law to be the legal father of the child, based on the conduct of the father and the circumstances involved in the case. This person may be called the “presumed father” and may have the legal right to custody and the legal obligation of child support, even if he is not technically the biological father of the child.
Ways in which a person may be found to be a presumed father
- The man was married to the child’s mother when the child was born
- The man was with the child’s mother before the birth and married her after the birth of the child
- The man attempted to marry the child’s mother even if the marriage was not completed in a legally valid manner
- The man openly represented the child as his own and welcomed the child into his home
If presumed father laws establish paternity, the presumed father is legally obligated to support the child. If the couple later splits up, the presumed father will have standing to request child custody or visitation rights. If a man knows that he is not the father of the child and wants to challenge this “presumed father” status, he often has a limited amount of time to make this challenge.
Public policy supports the concept that a child is better served by having a man help care and support for him rather than the mother having to rely on welfare to help support the child. The presumed father will need to present evidence regarding the presumed father status, such as showing that the father was not married to the mother at the time of birth. Until a father in this situation legally challenges the presumption, he has the duties imposed by law. In some states, the presumption cannot be challenged and the presumed father will not be able to abdicate his responsibility even if the child is not biologically his and this can be proven.