Who Gets Custody of a Child When the Parents are Not Married?

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When unmarried couples separate, it’s not surprising that they fight over child custody. The process of resolving custody issues can be tedious and emotional, not only for the parents but for the children as well. 

Generally, the kids remain with the mother, but the number of fathers gaining child custody is increasing. According to the U.S. Census Bureau, fathers being the custodial parent has increased from 16% in 1994 to 20.1% in 2018.

In Washington, the term “custody” isn’t being used as often.  The two main components that make up custody have been broken out; the residential schedule and decision making.  These two components are legally established in what is called a “Parenting Plan.”

What are Your Rights as a Father in Legal and Physical Child Custody?

If you’re a father, you are automatically given rights to visitation and joint decision making with regards to your child’s children’s education, health care, and religious upbringing. Washington courts work with the mindset that, unless a parent is unfit, children should have reasonably equal time with both parents and both parents have equal say in decisions affecting the child’s care and upbringing.  The court considered this to be the best thing for the child(ren).

You can petition for legal and physical custody of your children upon separating from your spouse.  But know that pursuing more than 50/50 custody will require proof that the child’s time with the mother is not in the best interest of the child.

What about if you’re not married? You can still petition for your visitation and decision making rights to be upheld, especially if you live in Washington State. However, before we go any further, let’s discuss your rights as a father.

Rights of a Father in a Custody Battle

As a father, you naturally want to be involved in the life of your child. You want to have visitation time and be involved in the decision making process in situations that affect your child’s life, but it’s not that straightforward in many cases. 

For instance, if your name is on the child’s birth certificate, you have equal parental rights with the mother if you bring the case to court. However, if it isn’t, you have to prove your paternity before you can pursue your rights as a father.

After proving paternity, the burden of proof is then on the mother to show that you’re not a suitable father and shouldn’t be given custodial rights.  To gain primary physical child custody, the burden would be on you to prove the mother is not a suitable parent. 

You may secure your parental rights by establishing a visitation schedule or shared custody arrangement that’s legally binding.  In Washington, this document is called a “Parenting Plan.”  Until you have a parenting plan (temporary or permanent) in place, there is no legal way to make sure your rights are upheld without going to court.

Unmarried Fathers Can Also Gain Custody of Their Children

Many parents aren’t married or even dating, so when the relationship is over, what happens to their children? Nowadays, unmarried fathers can have shared custody and scheduled visitation.  There is an expectation by the courts that the two parties should co-parent the child.

Does Marriage Influence the Granting of Visitation and Decision-Making Rights?

You don’t need to be married to perform your responsibilities as a parent, and that means you have rights to your child. However, you still have to file a motion for a Parenting Plan to iron out issues such as visitation, custody, and child support. More men now want guardianship or visiting rights with the child they fathered with their exes. 

Fathers Have Equal Parenting Rights

As a father, you can petition for child custody, reasonable child visitation, and child support. You and your child’s mother have equal rights. The courts have clear and excellent remedies for unwed fathers like you. You can begin the process of establishing that you’re the father by taking a paternity test.

If you live in Washington State, you can also have an aggressive defense if your child’s mother seeks child support and files a Parentage action. Washington requires that you undergo a paternity test (if you’re not on the child’s birth certificate) to ensure that you are the father before you can be ordered to provide financial support.

How Does Child Custody Work If You’re Not Married?

As a father, you might decide to allow the child’s mother to have custody and settle for limited visitation. However, you could spend more time with your child and possibly gain custody if you petition for it. 

Child custody involves establishing visitation schedules and defining who has the power to make decisions for your child. The parenting plan includes specifics and details that you’ll want to become familiar with, should you choose to fight for your parental rights and/or petition for custody of the child. 

Can You Gain Physical Custody of Your Child?

Generally, mothers more frequently take care of the child when couples separate. So, even if the man is a caring and excellent father, he is usually living outside of the child’s primary residence. He can’t be with this child every day. He can’t put his child to sleep at night and wake them up in the morning. If you’re in this situation, you also want to build and maintain a fruitful relationship with your child. 

Establishing a relationship with your child isn’t just important for their growth and wellbeing, it’s also something the court takes into account when establishing the residential schedule. If one parent is significantly more involved, participating in events, education, etc., the court will favor a residential schedule consistent with that parent’s past involvement unless there is reason to think a change is in the best interest of the child.

Washington State uses “residential placement” to mean the primary residence of the child, and it mandates a “residential schedule” that includes the details of visitation for each parent. A Parenting Plan will include all the child custody specifications

Can You Gain Custody of Your Child?

Legal custody determines who among the parents will make decisions on behalf of the child. Again, in Washington, this is called decision-making authority.  As a father, you want to be involved in decisions about your child’s welfare, health, and education. The Parenting Plan has a section on the specific details about decision-making.

Generally, both parents share this responsibility, but the court may limit the legal custody of a parent. The 2016 Residential Time Summary Report disclosed that the court granted full custody to the mother 46.6%, 58.1%, and 68.2% of the time if the father has one, two, or three risk factors, respectively.  Risk factors can be any of the following: chemical dependency, domestic violence, mental health issues, and a history of child neglect or abuse. However, you can seek legal help if you’re facing a similar circumstance.

Divorce Lawyers For Men Can Help You with Child Custody Problems

If you’re unmarried but want to gain child custody, it is possible because the court doesn’t require a marriage certificate for you to be eligible. Although it’s an uphill fight, you have an excellent chance of winning the case if you hire experienced and skillful lawyers who are competent in custody law.

You can fight to preserve your relationship with your child, even if you’re not married to the mother. Divorce Lawyers For Men attorneys have been fighting for fathers just like you all across Washington state for decades. 

If you want to get a head start, you can schedule a 30-minute consultation with a divorce lawyer today or call 360-866-7393.

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