Custody Rights for Unmarried Fathers

Updated March 23, 2017

Unmarried fathers who have a desire to play an active role in the lives of their children must first take the necessary steps to ensure their parental rights are protected. Unlike men who are married to the mothers of their children, unwed fathers must establish that they are in fact the father of their child before they can fulfil parental obligations and exercise their rights to custody, parenting time or anything else regarding the upbringing and care of their child.


The courts make no paternity assumptions when a man is not married to the mother of his child. In order for an unmarried father to exercise his custody rights as a parent, he must first establish that he is in fact the father of his child. This can be accomplished a couple of different ways. Most state courts have forms that can be completed to voluntary establish a man's paternal relationship to his child. At times, paternity can be established at the time of the child's birth by completing the necessary forms that the hospital provides and files on behalf of the child's parents.

Petition for Custody

An unmarried father has the right to petition to the court for custody of his child. While taking sole custody away from the child's mother is difficult unless the mother is unfit, an unwed father has a very good chance of establishing a fair custody and visitation order that will enrich his relationship with his child. To obtain a court-enforceable custody order, the father must petition the courts in his county (or the county where the child lives) to establish custody and parenting time.

Types of Custody

There are many different types of custody a father has the right to petition for. The legal language regarding custody is different depending on the state, but each type involves some form of shared time between parents. The most common types of custody for unwed father's is joint custody, where both parents have physical and legal decision-making authority of the child, and sole custody, where one parent has physical and legal decision-making authority over the child.

Regardless of whether the father is awarded joint or sole custody, it does not necessarily mean that he will be able to spend any more or any less time with his child. Parenting time that is established in the custody order will determine exactly when the child will be with his father and how much time the child will get to spend with his father.

Custody Modifications

Unwed fathers also have the right to modify any existing custody orders that are no longer relevant or outdated. Custody modifications are granted in most state courts based on what is in the best interest of the child. If a father feels that he is not spending enough time with his child, or he would like to change the legal status of his custody order, he may petition the courts to modify the original decree. If both parents agree to the custody modifications, they can file the modification without having a court hearing. If the parents do not agree, a hearing date will be set so the parents can testify as to why the modifications are in the best interest of the child.

Custody Jurisdiction

The state in which the original custody decree was granted has jurisdiction over ongoing matters regarding child custody. If the child's mother decides to move out of the state, the original custody order is still valid in the new state. If she moves to keep the child away from his father, the father has the right to petition to the court to have the child brought back to the original state.

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About the Author

Sherrie Scott is a freelance writer in Las Vegas with articles appearing on various websites. She studied political science at Arizona State University and her education has inspired her to write with integrity and seek precision in all that she does.