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. Establishing paternity is when a biological father does something to legally declare himself the father. A mother’s custody rights are automatically established at birth but a father generally has to do something to declare his custody rights if he is not married to the mother. If the parents were not married, the father may have had to do something to declare his custody rights such as signing the affidavit of paternity/birth certificate at birth, or if there is a child support order through the state, this generally establishes a father’s paternity. If you are unsure if paternity was established, you may want to talk to a lawyer who specializes in custody to find out if his paternity has been established - also, an attorney can hopefully explain what his and your rights are under [STATE} law. Here is a link to lawyers, some of which may be free or low-cost if you qualify: [LINK} If the father’s paternity was not established, you may want to ask a lawyer whether or not he currently has any legal rights to your children and to figure out what may be the best thing to do if you are worried about him trying to visit with/take your children. I cannot speak to your specific situation. In general, if a father’s paternity was not established, he may have to go to court to file a petition to establish his paternity in order to be able to file for visitation or custody.

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. For a father who has not legally established paternity, I am not sure whether or not he may also be able to claim some sort of paternity rights if he is being held out as the father for a period of time and treated/recognized as the father by both parents - it may be a possibility in some states. 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, 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. 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