Custody laws for non married parents

Updated March 21, 2017

In divorce matters, custody laws are predominantly clear-cut when determining which spouse will take custody of the couple’s children. In the case of children born to parents who are not married, however, custody matters can become very confusing. While children of unmarried parents have the same rights as children of married parents, many parents are unsure as to who has the right to retain custody when the parents separate. The confusion is furthered because the differences in custody laws for unmarried parents vary significantly from state to state.

Child Rights

A child born to unmarried parents is still entitled to the same rights and protections as a child born to a married parent. This includes the right to support, the right to have all necessities provided by both parents and the right to establish a relationship with both parents. Above all else, the best interests of the child prevail, even if the child’s rights seemingly impede on the rights of one or both of the parents.

Presumed Custody

While each state has its own process for determining custody, most states operate on the principle of presumed custody. In some states, the presumption is that an unmarried mother has sole custody of a child when no father is listed on the birth certificate. In other states, the mother is always presumed to have at least initial custody, regardless of whether the father is listed on the birth certificate. Still other states presume joint custody of the child by default, while a few states make no presumption of custody at all.

Custody Order

Both parents have a right to seek an order for primary custody through the family court. Neither parent is more entitled to custody than the other is. When determining who retains custody, the judge will first consider what is in the best interest of the child. In many cases, the parent with presumed custody will continue to retain custody in an effort to cause the least disruption possible in the child’s life. Extenuating circumstances can change the outcome, however. For example, if the mother is breastfeeding an infant, she will likely be awarded primary custody--at least for the time being-- so she may continue to do so. The judge will also consider the fitness of each parent when awarding primary custody.


Unless the family court deems the non-custodial parent to be dangerous, he has a right to visit with the child on a regular basis. The non-custodial parent has a right to establish and continue a physical relationship with the child and the child has an equal right to a physical relationship with the non-custodial parent. The custodial parent has no authority to interfere with visitation for any reason, including the non-custodial parent’s failure to comply with child support obligations.

Interstate Custody Matters

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets forth clear guidelines for determining child custody across state lines, which apply to both married and unmarried parents. To determine jurisdiction, the court must establish the home state of the child. This is the state where the child and the parent with initial custody have been residing for the last six months. In custody matters where there is no initial presumption of custody, courts can revert to the state where the child has the most significant connection--determined by the child’s birth state, in most cases--to establish which state will have jurisdiction over the custody matter.

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About the Author

Carrie Ferland is a practicing civil litigation defense attorney in the Philadelphia Area. As an author, her work has been featured in various legal publications for over 10 years. Ferland is a 2000 graduate of Pennsylvania State University and completed her Juris Doctorate and Master of Business Administration with the Dickinson School of Law. She is currently pursuing a Doctor of Philosophy in English.