How To Get Child Custody and Visitation for Unwed Fathers

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Unwed fathers can obtain visitation or custody of their children through a paternity suit, sometimes referred to as a suit affecting parent-child relationship (SAPCR). The first phase of obtaining custody or visitation is procedural. The eventual outcome, however, will depend on several factors including your prior relationship with your child and any negative parenting concerns about the mother of the child.

Filing a Petition for Custody and/or Visitation
The first step in getting custody or visitation as an unwed father is to file a petition. A petition is the document that begins any lawsuit and sets out the relief that you are requesting. The basis of your suit should allege that you are the unwed father of the child and that access by you with the child is in the child’s best interest. You can request custody, visitation, or both in the alternative. Custody and visitation are not the same things. When you ask to be named the managing conservator with the right to designate the main residence of the child, you are essentially asking to have primary custody. If you are simply asking for visitation, you are requesting the right to have time with your child on a regularly scheduled basis. If you are not a “presumed father,” you should also petition the court to have you named the father of your child. Family laws vary by state, but many states will presume that you are the father of the child if your name is on the birth certificate. Some states have other means for unwed fathers to become a “presumed father.”

After the Petition is Filed
Once your petition is filed, you should have the mother of the child served. The mother will then have the opportunity to respond and agree that you are the father or to deny that you are the father. If the answer is a denial, you will probably have to file a request with the court for DNA testing. Depending on your jurisdiction, you may have to pay all or some of the expenses associated with this testing. Once a positive test result is received, your child custody suit can move forward.

Fathers Can Parent Too
Historically, courts and juries have favored placement of children, especially small children, with their mother. Fortunately, in recent years more fathers, including unwed fathers, have been able to demonstrate equal or superior parenting abilities to obtain custody of their children. This task is easier if you have maintained an ongoing relationship with your child. Before you file your suit, you should develop an outline of your parenting strengths with your attorney. This will help your attorney in preparing an argument for full custody. Highlight factors like financial stability, adequate space in your home, and emotional support by your family.

Making a Case for Custody
If the mother of your child has negative parenting characteristics, advise your attorney of those issues as well. Negative parenting issues include reports of neglect to child protection agencies, drug use, criminal history, or the criminal history of new boyfriends. More states and reporting agencies now make criminal history information available online for a nominal fee. Many out-of-control mothers will even go as far as to post and brag about their negative history on social networking sights. These factors can demonstrate a lack of parenting abilities, and thereby justify awarding custody to you.

If the mother of the child has demonstrated a stable history of parenting, requesting visitation is your fall-back plan. Most states will allow parents to exchange visitation periods at any times mutually agreed upon, and then have a statutory guideline for when the parents cannot agree. For example, a non-custodial parent will be allowed to have visitations the first, third, and fifth weekend of each month. If your final order contains instructions regarding how to invoke summer visits, make sure that you follow the written requirements. Failure to follow the language in your final custody papers can accidentally result in forfeiture of the visits you worked so hard to obtain.

The Final Decree
The term “final decree” in family law is really a misnomer. Family law cases usually aren’t final until all of the children have turned eighteen and left the house. If you are awarded visitations, but learn a year later that the mother’s circumstances have changed, you can still petition the court to modify the “final decree” and award you custody at a later date. Courts prefer stability, but will entertain modifications when it is in the child’s best interest. For example, if the mother has become addicted to methamphetamine, a majority of courts will strongly entertain modifying custody because a parent using drugs could create a dangerous environment for the child.

The process of obtaining custody or visitation as an unwed father can take several months. A confirmed and legal presence in your child’s life makes the time and funds worth the effort. If you are interested in seeking full custody, the sooner you play an active part in your child’s life the better. For help in the procedural aspects of being an active, custodial parent, consult with a family law attorney in your area.

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