Table of Contents:
- Child Custody Laws in Texas for Unmarried Parents
- Maryland Custody Laws for Unmarried Parents
- Florida Custody Laws for Unmarried Parents
- Tennessee Child Custody Laws for Unmarried Parents
- Child Custody Laws for Unmarried Mothers in Oklahoma
- What Are the Missouri Child Custody Rights of Unmarried Parents?
- Child Custody Laws on Unmarried Parents in Arizona
- Child Custody Laws of North Carolina for Unmarried Parents
Texas laws state that unmarried parents can’t even begin to resolve custody issues until the father is considered a legal parent. Being the biological father does not automatically guarantee you parental status in Texas, however. Thus, establishing paternity may be your first step in exploring Texas custody options. After that, the process for determining visitation, child support and a host of other factors pertaining to the well-being of your child falls under the jurisdiction of the family court system.
If you’ve never married your child’s mother, Texas does not automatically recognize you as a legal parent. There is one exception noted in Texas Family Code Section 160: If you lived continuously with the child and his mother during the first two years of his life, and represented to others that the child is yours, you are considered a legal parent. Otherwise, your child’s mother retains all parental rights and makes all decisions regarding the child’s care and upbringing.
Texas provides unmarried parents a clear legal path to establishing paternity and strongly encourages fathers to do so early in the child’s life. The most common way requires that both parents voluntarily sign an Acknowledgement of Paternity document very near the time of birth. This free form is available at hospitals and vital statistics offices. Both parents must submit a valid ID to complete the document.
If you failed to establish paternity at or near the time of birth, the courts can issue an agreed paternity order if both parents agree to specific custody rights. If mom is not on board with the idea, you must obtain court-ordered paternity rights. Both options require you to take specific steps outlined in Texas law. If you cannot afford an attorney, you can contact the Texas Office of the Attorney General, Child Support Division for assistance with the process.
Parents are most often awarded joint custody in Texas and identified as Joint Managing Conservators. This allows parents to share decisions about medical care, education, extracurricular activities such as dance lessons and all the other details involved in parenting. But even with joint custody, one individual is named the custodial parent. That’s typically the parent who receives child support and with whom the child lives more than half the time. The custodial parent retains the right to determine the physical residence of the child.
Standard Possession Order
For details like visitation schedules,such as where your child will spend the holidays and what to do when the parents live 100 miles apart, custody orders usually include a Standard Possession Order (SPO). This contains details about the noncustodial parent’s access to, and possession of, the child. Parents can work out these issues on their own. If you can’t agree on the terms, however, the SPO contains specifics about a noncustodial parent’s right to visitation. For instance, a basic SPO grants a noncustodial parent possession of the child two hours every Thursday night and for at least one month in the summer, as well as every first, third and fifth weekend and alternating holidays.
When the court believes that joint custody may threaten the safety and well-being of a child, it can name one parent as Sole Managing Conservator (SMC). Designed to protect the child, this court order may take away the other parent’s right to make any decisions concerning the child’s welfare, eliminate visitation rights entirely or order supervised visits.
Establishing Paternity Is First Step
When a child’s parents are not married to one another, before the court can decide custody matters, the parents must establish paternity. In Maryland, paternity may be established by acknowledgment or by court order. Paternity is acknowledged when both parents sign an Affidavit of Parentage, which identifies the man who signs the document as the child's father. The parents can sign this affidavit at the hospital immediately after the child's birth, and the father's name can be added to the child's birth certificate at that time, as well. The parents can complete this affidavit after they leave the hospital, but in that case, they must return the signed and notarized document to the Division of Vital Records, instead of to the hospital. In the alternative, paternity can be established by genetic testing, which may be done voluntarily or ordered by the court.
Two Forms of Custody Available
Once the court has established paternity, either or both parents can seek custody of the child. Maryland recognizes both legal and physical custody. Legal custody is a parent's right to decide how a child will be raised; for example, where he will worship and attend school. Physical custody is a parent's right to provide a home for the child. One or both parents may have either form of custody. If parents share legal custody, they make child-rearing decisions together, and if they share physical custody, their child lives at both residences, and spends at least 35 percent of his time in each parent's home. If only one parent has physical custody, then typically, the other parent is granted visitation and pays child support.
Custody Based on Best Interests of the Child
In Maryland, unmarried parents are free to create their own custody and visitation agreements. Once they reach an agreement, they can submit a signed stipulation to the court, which sets forth the agreed-upon terms, along with a consent order. If the court approves the agreement, it will sign the consent order, which turns the parental agreement into a legally enforceable court order. If the parents cannot agree, however, they can ask the court to make this decision for them. In Maryland, the courts determine custody and visitation based on what is in the child's best interests. The court considers a variety of factors, which include the child's age, health and gender; the parents' fitness, character and reputation; the parents' ability to provide for the child and maintain family relationships; and in some cases, child's wishes.
Modification Available if Circumstances Change
Once custody is established, a parent can't change the order unless he can demonstrate a substantial change in circumstances and that the requested change is in the child's best interests. This is not a simple task, especially because Maryland courts consider the stability in a child's life to be of the utmost importance. The requesting parent must demonstrate that the current situation is putting the child's well-being at risk in some way. For example, if the parent with physical custody has become verbally abusive toward the child because that parent has become an alcoholic, then likely, the court will consider this to be a substantial change in circumstances, and will transfer custody to the other parent, who can better serve the child's interests.
If both partners are legal parents of the child, both parents usually have an equal right to custody of the child, according to Wood, Atter & Wolf, a law firm in Jacksonville, Florida. The state of Florida does not make the distinction between married and unmarried parents with regard to parental responsibility. Similar to child custody definitions, parental responsibilities fall into either sole or shared roles between the parents.
According to Florida Statute 61.046, sole parental responsibility grants one parent the right to makes decisions regarding the child without input from the other parent. Sole parental responsibility is only awarded to a parent when the courts feel that the child's welfare is in question or in danger. Shared parental responsibility grants both parents full parental rights and responsibilities.
Timesharing establishes a schedule to help the parents maintain a stable environment for the child. A timesharing schedule is a timetable that must be included in the parenting plan that gives specific times (including overnight and holidays) that the child will spend with each parent. Florida Statute 61.046 states that the parenting plan must be developed and agreed to by the parents and approved by a court, or established by the court. The court only establishes a parenting plan when both parents cannot come to an agreement. If unmarried parents can't reach an agreement and one of them wants to petition a court for visitation, the outcome will depend on the family court. Once the court establishes a parenting plan, modification can only be made through the court.
As an unmarried custodial parent in Florida, you can obtain child support through a judicial court order or an administrative order. Florida law requires both parents to financially support their children, and unmarried mothers and fathers who are custodial parents are entitled to financial support from the other parent, according to Florida Family Lawyer Blog. Child support commences once paternity is established through the court, and Florida statute 61.30 sets guidelines for the calculation of this support.
In Tennessee, an unmarried mother is automatically considered the custodian of the child. If unmarried parents are not together, the mother does not need to seek a custody order. As long as the mother has the child's birth certificate and can show proof of her identification as being listed the mother on the birth certificate, she can claim custody.
Because a mother is considered the automatic custodian in Tennessee, an unmarried father can only obtain custody if he seeks court intervention. The father must show that the mother is unfit. If he succeeds, the court will review the circumstances of the case and grant custody to the parent that would be in the best interests of the child.
Best Interests of the Child
Tennessee Code 36-6-106 outlines the procedure for a custody determination, whether during a divorce proceeding or just a custody proceeding. Judges examine several factors to determine an arrangement that will be in the best interests of the child. They include: (1) the relationship between each parent and the child; (2) each parent's ability to provide a stable environment; (3) each parent's ability to provide for the child's needs, like adequate housing, clothing, food, and medical care; (4) the child's preference, if the child is age 12 or older; and (5) any allegations of domestic violence or child abuse.
Unmarried Fathers' Rights When the Mother Dies
The United States Constitution protects unmarried fathers' rights. Before 1972, when a child's mother died and the parents were not married, the child became a ward of the state even if the father was raising the child with the mother prior to her death. However, in 1972 the Supreme Court, in Stanley v. Illinois, held that the unwed father had the right to seek custody of his child. An unwed father now has a right to prove that he is fit to raise his child. If he succeeds, the state cannot take custody over him.
In most states, child custody laws provide that mothers who are not married have complete control, care and custody of their children. Oklahoma is one of those states. Child custody laws in Oklahoma are governed by Title 10 of the state's code.
Custody of a Child Born out of Wedlock
According to Title 10, Sections 104 and 106, of the Oklahoma Code, the birth mother of a child born out of wedlock has full legal custody of her child and has the right to care for her child as she sees fit. The unmarried mother is in full control of the child, including the support, education and residence of the child, unless it becomes necessary for a court of law to step in. If the mother is unable to fully support the child, the other parent must assist to the extent of his ability.
Providing for the Child
If a mother can not financially provide for her child, the other parent can provide support, and the mother does not have to compensate him for voluntarily supporting the child, unless there is an agreement to do so. A third party may also supply necessities to the child. However, the third party is allowed to recover the value from the mother.
Records to be Available to Parents
An unmarried mother who is the custodial parent of a child is entitled to all records of the child, including but not limited to medical and school records. The father can also access these records if he requests them. However, the mother may petition the court to deny access to the father. The court can restrict the father's right if it finds it in the best interest of the child.
Relinquishment of Mother’s Rights to Custody
Oklahoma law allows an unmarried mother to completely relinquish her rights to control her child, regardless of whether she is able or unable to provide adequate support. The father also has the ability to give up his rights to his child. In both instances, it must be done through the court. If either parent abandons the child, that parent is presumed to have given up his or her rights. No other person may surrender or transfer a mother’s rights to the care and custody of her child without a court order and in accordance with the laws of Oklahoma. However, a mother’s custody rights may be taken away from her if it is proven in a court of law that she is unfit.
Visitation Rights of Grandparents
Grandparents of a child of an unwed mother may request that a court grant them visitation with their grandchild. There is a long list of things that the court must look at, and the process can be lengthy. The court will always look to the best interest of the child in the granting of visitation rights to grandparents. If visitation is granted to the grandparents, and the father’s rights have been terminated, the father will still be unable to visit with the child.
Custody of Child Upon Death of Unwed Mother
If an unwed mother passes away, the court would determine with whom the child would live. The court would always grant custody in the best interests of the child. The court would usually consider possible custodians starting in this order: the father; a grandparent; the person who was named by the wishes of the mother; a relative of either parent; the person in whose home the child has been living in a wholesome and stable environment, including but not limited to a foster parent; or any other person whom the court deems to be suitable.
With more people having children without being married, child custody is an important concern for unmarried parents when their relationship ends. Parents in Missouri can create their own custody arrangement, but if they are unable to agree, a court will issue a custody decision.
If parents are married when a child is born, the husband is automatically considered the child’s father. However, when parents are unmarried, a father has no legal rights unless he establishes paternity. Until paternity is proven, a father does not have any claim for custody of the child. Paternity can be established at the child’s birth when unmarried parents sign an Affidavit Acknowledging Paternity at the hospital. Otherwise, genetic testing must be done on the father and the child and the results are recorded in a court order.
Custody for Unmarried Parents
Parents are able to make their own agreement regarding custody, usually joint custody, although the parents must show that they can cooperate and make decisions together regarding the child’s care. If they can not demonstrate an ability to work together or they are unable to agree on custody, the court will decide which parent should be awarded custody of the child. In Missouri, custody of a child whose parents are not married is most often granted to the mother. While unmarried fathers do have rights, they have a difficult burden to overcome in seeking custody of their child. Unless he can show that the child’s mother is unfit, an unmarried father usually loses a custody dispute with the child’s mother.
Best Interests of the Child Standard
When custody is in dispute in Missouri, the court uses several factors called the “best interests of the child” standard to determine custody. They include: (1) the child’s preference, (2) the child’s relationship with each parent, (3) each parent’s ability to care for the child, (4) whether each parent is willing to allow the child to maintain contact with the other parent, (5) the mental and physical health of each parent, as well as the child, (6) the child’s performance in school and adjustment to home life and (7) whether either parent plans to relocate the child.
Unmarried parents can choose to sign an Acknowledgment of Paternity form at the hospital immediately after the child's birth; or they may complete an Affidavit Acknowledging Paternity form to voluntarily identify paternity at any time. Parents can submit their form to the state's Hospital Paternity Program and Office of Vital Records. Parents can also voluntarily cooperate with the Arizona Division of Child Support Enforcement to complete DCSE procedures to establish paternity and assign child support responsibilities according to state law.
If either parent does not want to cooperate, one parent can ask the DCSE for help with establishing paternity, which may include genetic testing if necessary. Alternatively, Arizona law allows either parent to initiate a paternity lawsuit pursuant to Arizona Revised Statutes Section 25-803. In a paternity lawsuit, the court issues a formal order identifying the child's parents. The court can make child custody and parenting time orders as part of the proceedings.
Types of Custody
Once an unmarried parent has established paternity of the child, the parent can ask for rights to child custody and visitation, also known as parenting time. Legal custody involves making decisions related to the child's upbringing in major areas such as schooling, health and religion. Physical custody determines the child's residence.Under Arizona Revised Statutes Section 25-408, the parent without custody has a right to a reasonable amount of parenting time.
When the parents have an open case with the Arizona courts, such as through a paternity lawsuit, they must develop a written parenting plan that states their legal custody rights and presents a schedule for parenting time with each parent. The two parties can cooperatively present a parenting plan to the court or separately propose a parenting plan and ask the court to decide on the terms. The judge can consider any factors affecting the child's best interests.
The main focus in any North Carolina custody case will be the child's well-being, according to Rosen Law Firm. Whether or not the parents are married, custody will be awarded to the person who, in the judge's opinion, can best reach and maintain the child's welfare. The judge has broad discretion and can weigh a number of options, including which parent can spend more time with the child, whether there are siblings, care-taking capacities, home environments and any other factors that promote or inhibit the child's physical and emotional welfare.
Either parent can file a custody claim, but Divorce.net notes that before parents appear in court they must prove they have met with a mediator. North Carolina has abolished the presumption that the mother will invariably provide the best care and therefore, gives no maternal preference in custody cases. Rosen Law Firm states a parent's right to custody is substantial, but not absolute; if a parent is deemed unfit, preference could be given to a non-parent who better serves the child's best interest. Marital status has no legal bearing on parental rights.
Judges are not required by law to consider the preference of a child in a custody case, but Rosen Law Firm documents that the opinion of a child old enough to exercise discretion is "entitled to considerable weight" in a North Carolina custody case. Judges may interview children in chambers to avoid the trauma of testifying in court.
Judges seldom split custody evenly, says the Rosen Law Firm, because the agreement assumes full cooperation on both sides. More likely, one party will be granted primary custody and the other will get visitation rights. The judge can also determine whether visitation should be supervised. Child support is not automatically awarded to the primary custodian. Divorce.net explains that child support and custody are completely separate matters and one does not necessarily determine the outcome of the other. If parents are not married, child support will not be enforced until the father legally acknowledges paternity or it is proved by DNA testing.