Rights of a Father When He Is Not Married

Unwed father with his child
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If you find yourself, intentionally or unintentionally, an unwed father, there are some things you need to know and do as you prepare to take on your role. In many cases, parents are in a committed relationship but are unmarried. In other circumstances, children grow up without a father living in their home. In either situation, unwed fathers may not know enough about the legal rights they have with their child.

There is an upward trend of unwed fathers and cohabitating non-married couples in general. According to the Centers for Disease Control and Prevention (CDC), 40% of all births in the U.S. are to unmarried women.

Establishing Paternity

In family law across the United States, if a married couple has a baby, the legal presumption is that the husband in that family is the father of the baby. But when a child is born outside of marriage, there is no legal presumption of paternity. Without establishing paternity, an unwed father has no legal standing as it relates to visitation, shared custody or the ability to make decisions about the welfare of the child.

The simplest way to establish paternity is to make sure that the father's name is on the baby's birth certificate. Being with the mother at the hospital when the baby is born and helping her fill out the birth certificate forms is the least complicated way. If that is not possible, an unwed father can complete a Voluntary Acknowledgment of Paternity form.

If the mother contests the father's paternity, he can contact a government agency like the Child Support Enforcement Division in his state, or he can petition the court to establish his paternity. The unwed father will need to take a paternity test (for which a court may order the mother's cooperation) to establish his parental status.

If the father's state has a paternity registry, he should get on it immediately after he becomes aware of the mother's pregnancy. As of 2017, 25 U.S. states have a paternity registry.

Gaining Custody Rights

Once an unwed father establishes paternity, he needs to determine his custody status. An unwed man who is legally designated as the father has the same custody rights as a married father.

If an unmarried couple is raising their child together in the same home, custody is not an issue. But if at any time they separate, the father will need to petition a court to establish custody rights. If the parents are not living together or are not intending to raise the child together, the father will also need to petition the court.

While laws that determine custody arrangements vary from state to state, the court will generally award custody based on the best interests of the child. In the majority of cases, the court will rule in favor of the mother unless she is deemed unfit to care for the child. So fathers who want custody of the child need to retain a family law attorney and start the legal process to establish custody.

In most cases, unless the mother is clearly unfit, the father will want to petition for joint or shared custody, or he may want to allow the mother to have full custody with him only having visitation rights. If the mother is unfit to have custody of the child, he will want to petition for full legal custody.

Before a court determines legal custody for the child, the parents should work together to establish a parenting plan that defines roles and responsibilities. When this is done amicably between the parents, the courts are more likely to approve the plan they've put together.

Paying Child Support

Regardless of their custody status, fathers have financial responsibilities. When an unmarried father and mother are raising a child together in the same household, mutual financial support happens informally. But if the parents separate, child support will become a formal legal obligation.

Generally, the only way to avoid paying child support, aside from a child becoming of legal age, is for a father to have his paternity rights terminated. In most cases, termination of parental rights would effectively end a father's relationship with his child and absolve him of any parental responsibilities.

Child support is determined based on a number of factors including the parents' individual income levels and obligations, availability of other financial support, and the needs of the children. Each child support case is unique and the amounts of child support needed will be individually determined.

Once child support is set by the courts, it becomes a primary financial obligation which can be enforced by government agencies. Unpaid child support can even result in jail time. And whether or not the father has cooperation from the mother on important issues such as visitation, child support obligations remain.

A Word From Verywell

Unwed fathers have rights and responsibilities like any other fathers do. But given the lack of a legal marriage between the parents, establishing those rights and enforcing those obligations becomes more complicated. Men who find themselves as unwed parents, whether intentionally or not, ought to take appropriate steps to ensure their parental rights and to meet their parental obligations.

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Article Sources
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  1. Centers for Disease Control and Prevention. Unmarried childbearing. Updated January 20, 2017.

  2. Child Welfare Information Gateway. The rights of unmarried fathers. Updated August 2017.

  3. Anderson KG. Establishment of legal paternity for children of unmarried American women: Trade-offs in male commitment to paternal investmentHum Nat. 2017;28(2):168-200. doi:10.1007/s12110-017-9284-0

  4. National Conference of State Legislatures. Child support 101.2: Establishing and modifying support orders. Updated March 19, 2014.

  5. National Conference of State Legislatures. Child support and incarceration. Updated March 4, 2019.

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