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Child Custody | Family

What Rights Does a Father Legally Have?

8 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

A woman who has her child when she is either married or unwed has full legal custody of her children in every state. When a couple with children decides to break up their marriage and live separately, it is important to understand what state laws say about a father’s rights to child custody. A father must prove his paternity. Your child custody rights for both a mother and father should be established before you decide to live separately. 

We can connect you today to a local unbundled attorney in your area to get more information.

Your children need family structure and certainty during the stressful time when they find themselves living separate from a parent. You will need to create a parenting plan. Consult a family law attorney for help creating a comprehensive plan that sets up an agreement for visitation, financial responsibilities, and other important child-related issues. After you separate, be aware that until your parenting plan is approved by a family court judge, it is considered informal and not legally enforceable.

When Separation Does Not Lead to Divorce

When parents decide to live apart, a father and mother retain their existing legal standing including their rights to custody and visitation for their children. It often is the case that both the child’s father and mother want to be recognized as the primary custodial parent. If parents can‘t agree to a shared custody arrangement they can schedule mediation and seek a compromise that they are comfortable with. Until a court approves their parenting plan it is considered informal. You can make your parenting agreement enforceable by petitioning the court to issue a parenting order based on your agreement. Some couples decide to continue their marital separation over a long term without planning to file for a divorce. The court’s parenting order provides them with a legally enforceable child custody, visitation, and financial support plan that is enforceable in writing during separation.

When Separation Anticipates Divorce

A couple who decide to live apart usually do file for a divorce ultimately. It is typical for the couple to try and schedule their court date sooner rather than later to help bring closure to the tension and anxiety associated with a divorce. You should include a court‘s parenting order with your divorce petition. Then with a court’s final ruling your parenting plan becomes legally recognized, and enforceable as part of your divorce.

Unmarried Parents and Child Custody

Unwed mothers have legal custody rights to their children in all states. Those rights include complete authority to make decisions for her child as well as full access and control over decisions in the best interest of the child. An unmarried father must establish his lawful paternity from genetic testing or by recording his name on the birth certificate. This proof of paternity is required to be granted legal custody of their child. Once a father’s status as the child’s legal parent has been established, then the father and mother are treated as equal in terms of child custody, visitation, and financial obligations.

Legal Separation? Choosing the Best Child Custody Terms 

For most families who divorce, separation is an immediate disruption in their living arrangements. Your children no longer have a home with two parents to come home to after school. They have to adjust and be assigned to the custody of one parent or the other. Perhaps the family can agree on shared custody, where children live with one parent during the week and the other parent on weekends. Parents anticipating divorce do the best they can to arrange for shared custody given their work schedules, the children’s school hours, and the inevitable breakdown in communication that accompanies a pending divorce. Knowing what the law permits in terms of child custody  options helps get you through these difficult times as you prepare for the court’s final divorce ruling.

When faced with household disruption and needing new custody arrangements, be aware that your state permits quick actions to protect your children on issues of custody during the separation period leading up to divorce. You can petition the court for a temporary child custody order, or if necessary an emergency child protection order. These are legally enforceable and available to every parent.

Can a Child Choose Which Parent To Live With?

Until your child reaches the legal age of maturity in your state (age 18 in most states), only the parents or a court can decide who their child lives with. When a married couple separates, the law considers them still legally married in all respects. Child custody arrangements after the parents are living apart have to be approved by a court to be legally enforceable. Until the court makes its final ruling, you should not let work or other circumstances force you into what may be an unfair, or uncomfortable child custody or visitation arrangement. Courts will always hear your petition for a temporary custody order if you feel it is needed to protect your rights for custody and access to your children. If you feel your children have been put at risk of harm by living with your spouse without your consent, you can petition the court for an emergency order for the protection of your children. You should consult a family law attorney to understand the procedures required for these temporary or emergency orders. Then if necessary you can take more actions to protect the best interests of your child.

Your decision for marital separation changes your children’s living situation. Your children will mature as they discover new interests involving sports, music, and art, etc. Your work-related schedule or travel may conflict with parental supervision. One or both spouses may remarry. There can be work transfers to other states, and unforeseen emergency medical incapacitation can inhibit travel and access to your children. 

Whatever the emergencies, you can petition the court to modify your parenting plan so that it remains legally enforceable for both parents and allows you to maintain healthy “best interests of the child” family relationships. It can seem convenient and tempting to accept an informal or casual arrangement that changes your child custody and visitation rules. However, if your changes are verbal, not in writing, and are not approved by the court, they can be viewed as violations of the court’s formal parenting orders. It is best to petition the court to modify any changes in your parenting plan whenever necessary. When you appear at your hearing be prepared for a full legal proceeding. You may need to bring witnesses, present evidence, affidavits, photos, etc. Your spouse may object and oppose your petition in whole or in part. Be prepared to win your petition for modifying your child custody arrangements and consider consulting an attorney prior to your hearing. Your evidence should be compelling to win your case.

Legal Separation and Father’s Rights

A legal separation agreement should cover all conceivable marital issues. Because your parenting agreement will be approved by the court to make it enforceable, you may want to consider going through a mediation specialist that finds common ground for marital differences. The sooner you reach a mutual understanding that includes all sensitive and difficult issues that were sore points during your marriage, the sooner you can get court approval and closure for your separation and child custody concerns. 

Child custody, visitation, children’s health, and education decisions are some of the decisions involved in the court’s review of your parenting plan. The overriding priority for the court is to protect and preserve the best interests of your child. Maintaining healthy and consistent supportive parental relationships between parents and their children is a foundational priority for the court. 

Blended families from remarriage after divorce can lead to unpredictable child custody and child access concerns. Suppose your ex-spouse is the biological father of your children and he remarries after your separation and divorce? When you remarry, suppose your new husband wishes to terminate the biological (now divorced) father’s rights to your children so your new spouse can legally adopt them. If there is a question about your ex-spouse being the child’s biological father, that can be considered by the court. Or if your ex-spouse or his new wife are considered a bad influence for the children, those are claims a non-biological father may bring to the court asking to terminate your ex-spouse’s claims to be the legal father of your children..

Establishing the best post-divorce or best post-separation family relationships can find support during the divorce and separation process with specialized attorney counseling. Our team of Unbundled attorneys will help you choose the best options at an affordable cost. Their starting rates range anywhere from $500-$1500 while traditional lawyers can charge $5000 and up.

 We can connect you today to a local unbundled attorney in your area. Unbundling your case will help reduce costs and get you the legal help you need.

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