What Unwed Fathers Should Know About Gaining Custody

Establishing paternity is the first step in getting custody

Many fathers who are not or were never married to their child’s mother may think the likelihood of them obtaining custody is slim to none. The truth is unwed fathers can gain custody of their children through filing a parentage action. Each state has its own laws and statutes regarding this, but in many states, it is called a Complaint to Establish Paternity, a Petition to Establish a Father-Child Relationship, a Petition for Paternity, or a Suit Affecting Parent-Child Relationship, (all of these are just different names for a paternity lawsuit filed to prove that someone is the legal and biological father of a child). Petitioning the court for a paternity suit is the first step unwed fathers need to take to obtain custody or visitation with their children.

The outcome of the paternity suit, however, is not based on a procedure but more on many factors that a judge considers throughout the case. Judges look at a wide array of factors, most notably the relationship the father has with the child and any parenting concerns the father has regarding how the child’s mother is caring for or raising him or her. These factors play a major role in how the judge decides the case and whether the father gets the outcome he desires.

Filing a Paternity Suit

When an unwed father files a paternity suit, he is petitioning the court to provide him with access to his child, which is based on the idea that contact with both parents is within the child’s best interests. In this petition, the father can request custody, visitation, or both, but it is important to note that custody and visitation are not the same things. Once the petition has been filed with the court, the father needs to ensure that the child’s mother is served with a notice that a petition has been filed.

Making a Custody Case

Fathers will want to hire an attorney to help build their custody case. If fathers have any concerns or evidence that the mother is improperly parenting the child, it is important they inform their attorney of these facts, including reports of neglect, any cases with child protective service agencies, or evidence of unfit behavior. If the mother does not have any negative parenting attributes, the father may want to consider petitioning the court for visitation/parenting time as a backup plan. If a father has been denied parenting time with his child, depending on how long the absence has been, a father might look at setting a long-term goal of obtaining custody. This long-term goal might involve first establishing paternity while obtaining as much overnight parenting time as possible, and then preparing to file a follow-up motion or petition with the court (a year or two later) to modify that parenting plan and make the father the primary residential parent. This requires strategic planning and a father must be at his best at all times – even a small slip-up can derail this plan.

The Custody Decision

Depending on the circumstances of the case and the evidence presented, the judge decides on the father’s petition. The father’s request for custody or visitation will either be granted, denied, or some compromise will be made between both parties. It is important to know there is no such thing as a “final decree” when it comes to child custody issues – there is always an opportunity to have child custody agreements modified or changed depending on the circumstances of the case.

When the judge makes a decision on custody-related matters, a father should expect that he and the mother will both be testifying under oath and that the judge will be relying on numerous factors that are presented in the form of evidence to the court. This might be report cards, letters from counselors, or even the advice of a court-appointed child representative (a lawyer that represents minor children). The judge will base their decision on what is in the best interests of the children, not necessarily based on what a child or either parent wants. Getting started on the path to getting parenting time or custody of your child means first establishing paternity – and an experienced child custody lawyer is likely the first and most important step to take for your family.