Should Unwed Mothers File for Custody?

Get the Facts About Presumed Custody for Unwed Mothers

Mother with her two daughters smiling near a piggy bank
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Unwed mothers may wonder whether they need to file for custody. The answer depends on several factors. The following questions and answers will help unwed mothers decide whether to file for custody:

What's your state's position on child custody?

In some states, an unwed mother is presumed to have sole custody of a child, while other states presume that two parents who sign the child's birth certificate have joint custody of a child, regardless of whether they're married.

If either parent wishes to change that arrangement, he or she must file for custody in court.

Has the child's father signed the birth certificate?

If the child's father has not signed the birth certificate, then custody of the child belongs to the mother. In this case, there is absolutely no need for the child's mother to file for custody. However, the child's father at any time can openly acknowledge paternity in court, which - depending on the state - may grant joint custody to both parents.

Does the child's father pay child support?

If the child's father pays the child's mother child support, the child's mother should consider filing for a child custody agreement. Because both procedures generally go hand in hand, if a child's father has not requested an agreement, it may only be a matter of time before he does.

How is your relationship with the child's father?

Unwed mothers may already be in a long-term, committed relationship with the child's father.

In such cases, the mother may not want to file for child custody, as she might not fear losing her child or ending a relationship with the child's father. Ultimately, it is the mother's decision on whether or not to file for child custody.

How is the child's relationship with his/her father?

The child's relationship with the father is one of the most important questions to ask in determining whether to file custody.

It is the court's opinion that a relationship with both parents serves the best interests of the child. Therefore, barring any critical circumstances, a court will likely grant both parents joint custody of the child.

Does the child's father live close by or in a different state?

If the child's father lives far away from the child and his/her mother, an unwed mother may want to file for child custody. It will be best to have a parenting plan on file which explains when each parent is entitled to custodial and visitation rights. Examples of an appropriate agreement may include a stay during summer vacations or holidays.

Is the child's father in a new relationship?

If the child's father is in a new relationship, an unwed mother may consider filing for child custody. The reasons for filing a child custody agreement at this time include:

  • The father and his new significant other may want to see the child more often than what the mother deems to be appropriate
  • The child's father and the new significant other may begin to see the child less because he's busy with a new relationship
  • The child may want to spend more or less time with his/her father

It's best to have an agreement on file to set everyone's expectations in this situation.

If the parties have great communication with each other, a child custody agreement may not be necessary.

Is the child's father incarcerated?

If the child's father is incarcerated, the mother should consider filing for child custody because upon his release or during his incarceration; a father may attempt to assert his right to visitation with the child. If an unwed mother would like to prevent visitation during incarceration, it may be best to have a child custody agreement on file.

Do you fear that the child's father will remove the child from the state or your home without your consent?

If the mother's relationship with the child's father is not good and the mother fears the father will remove the child from her care or the state, without her consent, the mother should consider filing for child custody, so she has legal protection against a father removing the child.

If she doesn't file for child custody, for states that presume two parents who sign a birth certificate have custody of the child, an unwed mother may be left with little recourse against a father.

For more information about child custody, unwed mothers should read the child custody guidelines in their state or speak with a qualified attorney.