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If both parents are on the birth certificate but not married, who has custody? This is a common concern among the many couples who have decided to separate. In such circumstances, the presence of both parents' names on the birth certificate doesn't automatically determine custody arrangements.


That’s why it's important to be aware of paternity rights. In this blog post, we are going to discuss the custody rights of unmarried parents and the factors that influence custody decisions.


What is Custody?


Custody is the legal right or duty of care for someone, particularly a child, after their parents have separated or died. Based on the situation and the best interest of the child, custody can be granted by a court or agreed upon by the parents.


Determining custody can be a challenging task when an unmarried couple is listed as parents on a child’s birth certificate. It is necessary to know about physical and legal custody to get a better understanding of the types of custody and their implications for the child’s life.


Physical Custody


Physical custody refers to the legal and physical responsibility of a parent or guardian to offer a home for a child. It involves decisions about the child’s daily routine and care, such as clothing, food, and bedtime.


Physical custody is often determined in family court and is of two types.


  • Joint Physical Custody: Joint physical custody means that the child spends substantial time living with both parents, and both the mother and father have equal responsibility to physically care for the child.
  • Sole Physical Custody: This means that the child lives with one parent. This parent is called a residential or custodial parent. The other parent is known as a non-residential or non-custodial parent. The non-custodial parent has the right to regularly visit the child.


Parents should understand their custody rights, parental rights, and any potential legal action they may need to take to protect their child’s best interests.


Legal Custody


Legal custody gives a parent the legal right to make long-term decisions about raising a child. This can include the child’s

·       Dental care

·       Medical care

·       Education

·       Religion

Parents should share legal custody when their names are present on their child's certificate. The following are the types of sole custody.

  • Joint Legal Custody: This is a type of legal custody that grants both parents the responsibility and right to make decisions about the child’s welfare.
  • Sole Legal Custody: This is also known as sole parental responsibility. Here, one parent has complete responsibility to make decisions for the child.


Factors That the Court Considers When Deciding the Custody of a Child


  • The age
  • The emotional needs of the child
  • The interest and ability of each parent to provide for the child’s physical and emotional wellness
  • The relationship and bond between the child and each parent
  • The preference of the child, if the child is old enough to express a reasonable preference
  • Communication and cooperation between the parents
  • The continuity and stability of the child’s living environment
  • The support and involvement of the extended family members
  • History of abuse, domestic violence, substance use, or neglect by either parent


The court will consider all these factors in the circumstances and facts of each case and will try to reach a decision that serves the child’s best interest and welfare.


How will Unmarried Parents Gain Custody Rights?


When unmarried couples have a child, they may face some challenges in establishing and enforcing their child custody rights, especially if they separate or disagree on parenting issues. Here are some steps that unmarried couples can take to establish child custody:


Paternity test:  Unmarried parents voluntarily acknowledge their roles in the child’s life. Establishing paternity can grant the parent legal rights and responsibilities.


Make a parenting agreement: A parenting agreement is a written document that outlines the rights and responsibilities of each parent. It also specifies the schedule and arrangements for the child’s time with each parent, including holidays, vacations, and special occasions. A parenting agreement can be made by the parents themselves or with the help of a mediator or a family law counselor. A parenting agreement can benefit both the child and the parents, as it can reduce conflicts, provide consistency, and reflect the best interests of the child.


File a petition for child custody in court: If the parents cannot agree on a parenting agreement or if there are disputes or changes in the circumstances, they may need to file a petition for child custody in court. Then, the judge will decide the custody and visitation of the child based on the best interests of the child.


This process can be important in determining visitation, custody, and support arrangements for a child whose parents are not married. The presence of the parent’s name on the child’s certificate will make this process easy.



Benefits of Child Custody


·       By getting custody, children avoid feeling torn between their parents

·       Children know they are loved by both their mother and father. So they experience less emotional distress

·       Children will develop a healthier sense of friendship and trust with their parents

·       Shared parenting helps the children cope with the change

·       Joint custody can reduce the burden on unmarried parents

·       Shared responsibilities decrease the chances of disputes over financial matters

·       Joint custody will help unmarried parents concentrate on their child’s career or education


Final Thoughts


Child custody problems can be challenging for an unmarried parent to manage on their own.

If you are facing child custody issues or have questions like “Who has legal rights to a child if not married?” or “Does a father have rights to his child if not married?” then you should consult a custody attorney who can guide you on your legal options and help you protect your relationship with your child.

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