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. The most common way to establish paternity is by signing the affidavit of paternity at birth, which then causes the father’s name to be put on the birth certificate. Another way is if the mother files for child support or if the state files on behalf of the child, which happens often if the child receives public assistance. As part of the child support order, the father’s paternity has to be acknowledged or established in some way before he is ordered to pay support. If you are unsure whether the father’s paternity may have been established, you may want to talk to a lawyer who specializes in custody for advice and guidance on what his and your rights are under STATE law. Here is a link to lawyers (free and paid): LINK

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 if the parents cannot work out any sort of agreement on their own. If the father’s paternity was not established, but you are worried about him trying to take your child, you may want to talk to a lawyer about what steps to take to best prepare yourself ahead of time in case he does take your child without your permission. For example, a lawyer may suggest that you keep a copy of the child’s birth certificate with you if it shows that no father is listed in case you need to call the police to report that the child was taken.

Different states handle an unmarried father’s custodial rights differently – some states have a law that clearly says the mother has custody until a court order says differently. Other states assume parents to have equal rights once paternity is established even if there is no court order of custody or visitation. For a father who has not legally established paternity but who the mother and child recognize to be the father, it can sometimes be possible for a father 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. To find out specifically how your state views a father’s rights once paternity is established but before a custody/visitation order is in place, you would have to talk to a lawyer who is familiar with custody laws in your state.