Custody & Kidnapping

When parents are not married, generally, whether the father has custodial rights already or whether he would have to go to court to file for custody rights may depend on whether his paternity has been established. A mother’s custody rights are automatically established at birth but a father generally has to affirmatively establish paternity if not married to the mother.

In terms of what a father’s custodial rights are once paternity is established, different states handle an unmarried father’s custodial rights differently – a few states (such as Arizona, for example) have a law that says the mother is assumed to have custody until a court order says differently. The majority of states, however, assume parents to have equal rights once paternity has been established. To find out for sure how your state views a father’s rights when there is no custody order, you would have to talk to a lawyer who is familiar with custody laws in your state. [ADD THIS FOR ARIZONA ONLY: In Arizona, there is a law that deals with custodial interference that says, “If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this section until paternity is established and custody or access is determined by a court” - you can see whole law here: https://www.womenslaw.org/laws/az/statutes/ss-13-1302-custodial-interference-child-born-out-wedlock-defenses-classification However, the section that I highlighted is part of a criminal law against parental kidnapping (custodial interference) and so that section is specifically related to the issue of whether or not a person is committing parental kidnapping. I cannot say if there is a similar law that would address the general question of who is thought to have physical custody.] To find out how your state views a father’s rights when there is no custody order, you would have to talk to a lawyer who is familiar with custody laws in your state.

If the state assumes both parents to have equal rights and a parent is concerned about the other parent taking the child or keeping the child for longer than the other parent wants, for example, the parent may decide to try to file for custody in court. However, sometimes just because a parent files for custody, it doesn’t mean that the parent will be granted custody. Often times a parent may file for full custody and end up with joint custody and a set visitation schedule, which may give the other parent more time than s/he had prior to parent filing in court. To find out how your state views a father’s rights when there is no custody order, you would have to talk to a lawyer who is familiar with custody laws in your state. Here is a link for lawyers, some of which may be free or low-cost if you qualify: LINK Also, if you are considering filing for custody, you may want to think through the pros and cons with a lawyer first. Here is some information about custody in STATE in case you want to read about it: LINK