Custody of children is never a simple issue to deal with, and it is often complicated by the strong emotions that accompany the subject. Generally, custodial disputes involve clarifying the rights that the father and mother have when it comes to where the children will live, how much say each party has in their children’s lives, and how are the children to be financially supported.
“Custody” means the rights and responsibilities parents have toward their child. This can mean making decisions regarding the child’s education, medical care, extracurricular activities, religious instruction, etc. Parents can either have “joint legal custody,” where they share decision-making, or a party may have “sole legal custody.” “Physical care” means where the child resides. Parties may have “shared physical care,” meaning the child spends half the time with each parent. The other option is “primary physical care,” meaning the child resides primarily with one parent and has visitation with the other.
When an unmarried woman has a child, the law grants the mother custody initially. Until a father is acknowledged, the mother has the right to make decisions for the child and to care for the child. Thus, unmarried fathers have no legal ground to claim sole custody of a child. This is rooted in the fact that biological mothers cannot be easily mistaken, compared to the identity of fathers prior to a legal determination.
Until a father is legally recognized, fathers do not have the right to visit their children or make decisions regarding their children. At the same time, mothers do not have a right to pursue child support or medical support until a father is legally recognized.
There are a few ways for a father to be legally recognized. First, both parents can sign a paternity affidavit after the child is born. This places the father’s name on the birth certificate and legally establishes him. At this point the father still does not have any set visitation rights, but the mother can file for child and medical support.
Paternity can also be established by the Child Support Recovery Unit through a child support order. If a mother or the State is seeking child support, CSRU will first have to establish an individual as a legal father before support is put into place. CSRU will work with the parents to carry out genetic testing. If an individual is determined to be the father, then a child support order will be put into place and may include back support. If you are contacted by CSRU, an experienced family law attorney can assist you to make sure your rights are protected, and that accurate information is used to determine support if you are indeed the father of a child.
Paternity can also be established through a paternity action filed by the child’s mother or father. In this situation, the Courts will ultimately decide paternity based upon evidence brought before the Court or through genetic testing.
Once paternity is established, a mother or father can bring a Court action for custody and physical care. Based upon the standard of what is in the best interest of the child, the Court will determine the issues of custody, physical care/visitation, and child/medical support. You will find that an experienced family law attorney is essential to helping you navigate through this often difficult and emotional process.