Child Custody Without a Father on the Birth Certificate

It's becoming more and more common for children to be born to unwed parents—in the United States today, 40 percent of all children are born to unmarried parents, a jump from 18 percent in 2007. Unfortunately, our legal system is still mostly set up with the assumption that a baby's parents are legally married.

This can raise a lot of questions about child custody for single mothers if the father isn't named on the birth certificate and doesn't want to be a part of the child's life. Does the mother have to file for custody? Or is it assumed that since the child lives with her and the father isn't around, she automatically gets custody and doesn't need to actually file for it?

Some moms in this predicament even wonder whether formally filing for child custody could work against them, causing an absent father to reappear out of the woodwork and demand joint custody or regular visitation.

The answers to these questions vary depending on where you live.

In some states, like Michigan, it's presumed that an unwed mother only has initial custody, as opposed to sole custody, even when the father is not on the birth certificate and has never signed a formal acknowledgment of parentage to establish paternity or legal fatherhood. (It's important to note that a birth certificate is the record of the child's birth, not a way to establish paternity. If the mother is unmarried, she and the father must establish paternity before the father's name can be put on the birth certificate.)

In other states, like Oklahoma, it's presumed that the mother has sole custody in cases where the parents were unmarried at the time of the child's birth and no father is on the birth certificate. However, if circumstances change (say, the father proves paternity and files for custody or visitation), the judge can issue an order to the contrary. Even if a child has been living with the mother, the court will give each parent an equal opportunity to prove that it's in the best interest of the child if he or she has custody.

While you might assume that the same would be true for fathers if the roles are reversed, that is not always the case.

To find out your custody rights as a single mother, contact an attorney that practices family law or read up on the statutes regarding "never-married parents" or children "born out of wedlock" (the language you might see in the actual law), as well as child custody laws in your state.

Depending on where you live, you may need to formally file for custody, even though your child is already living with you.