Child Visitation and Child Custody Rights for Unmarried Parents

By James

Regardless of the marital status of the parents, the court gives child visitation and child custody rights to the biological parents. The willingness of the child is also taken into consideration while making a decision; the first preference of the court is that the child spends time with both parents. In some cases, when it is proven through evidence that it is not suitable for a child to be with one of the parents, the court issues a restriction. The parents agree on a parenting plan before the legal process initiates. It is decided whether both parents will get primary custody, visitation periods and decision-making for the child’s schooling, religion and other important aspects of his/her early childhood.

If a child is born to unmarried parents, a paternity acknowledgement is signed by both parents to claim parenthood. Once the paternity is established, the biological father can claim the right to child visitation and child custody. In case of disputed fatherhood, the court takes the decision after DNA tests. Each State has its own legal process of filing for paternity; mostly, the paternity suit is filed by the mother to opt for child support from the biological father. This informal negotiation is rather important and an easy way to deal with the problem of child custody and other responsibilities related to the child. In case of a divorce, child custody can be an emotional matter and it is ideal to work it out before getting the court’s approval.

If both parents do not agree upon the same parenting plan, they take the matters to the court by petitioning the court for child custody and / or child visitation rights. Parents with an agreed parenting plan also go to the court for approval of the arrangement. If either one of the parents do not agree on the arrangement, the matter is solved by the court through a series of hearings. The court prefers that both parents should get the opportunity to see the child but if it is proven that either one of the parents can cause harm to the child, the court orders a restriction. Many cases of domestic violence and drug problems restrict the person involved from meeting their child. This is necessary to ensure the child’s safety. If none of the parents are fit for primary parenthood or visitation, the child is taken away by protective services.

Apart from taking the matter to the court, the parents can also use an Alternative Dispute Resolution (ADR) method which requires both parties to be willing to negotiate. It is a method of arbitration and mediation devoid of the heat and competitiveness of the courtroom. ADR is also called Mediation of Collaborative Family Law. In this method, both parties propose their ideal solutions to the problem and agree upon a plan in presence of their attorneys. If the parents have chosen collaborative family law and the decisions made are at a clash with the decision of the court, the attorney is automatically disqualified.

A primary caregiver of a child is important for his/her mental growth as psychologists have stressed on the fact that the emotional bond of a child with the caregiver is important to a child’s successful passage through development – both mental and physical.

Sometimes, parents get shared custody of a child which allows them to equally take part in a child’s growth after separation by becoming the primary caregivers. But mostly, a mother is the primary caregiver; the unmarried father can take away the rights of custody from the mother by proving in court that she is unfit to become a primary caregiver. This way, the father can win sole-custody of the child. In most of these cases, unmarried fathers do not get sole custody but they can still be involved in their children’s lives due to right of visitation or shared custody. While determining a primary caretaker, the court takes into consideration how the parents have divided responsibilities to take care of the child. Such responsibilities include bathing, cleaning, meal preparation and planning, healthcare, laundry, parent-teacher meetings, co-curricular activities and leisure activities with the child.

The custody order can be modified by the court upon the request of both parents or if one parent files a petition. In case of a divorce, the parent who has been taking care of the child during the marriage is preferred to be the primary custodian. The court usually considers the child’s best interests when it comes to allocating the responsibilities. Apart from the child’s wishes, parents’ mental and physical health is also taken into consideration. Age of the child, adjustment to school, and relationship with the extended family members of both parents, gender of the child and their relation with family members other than the parents are also considered while providing primary custody. Child custody hearings are mostly informal. Both parties are asked several question related to the case and the agreement. If the parties fail to come to a mutual agreement, the judge decides which party should get custody.

If the parents are unmarried, a mother has sole legal custody till the court issues an order. She can also opt for child support but if the father has paid any money during informal agreements, it would not be counted in the court and he may have to pay more than he had to.

Child support and child custody are delicate matters where money and emotions, both are involved. Mothers are given preference as a primary custodian but sometimes, they do not provide suitable environment to the child. If one of the parents has issues such as drug abuse, alcohol abuse or any mental disorder due to which he/she might end up hurting the child in any way, it should be proven in the court. Since it is a matter of the safety of a child and the right of custody or visitation, the parents of the child should contact legal family attorneys before taking any action. Even before making any informal agreements, one should discuss the matter with an attorney to know the legal rights as a parent and the consequences of any action inside or outside of court.

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