Most states have laws explicitly preventing courts from applying a general preference for mothers over fathers or vice versa in their custody determinations.
In years past, if a child’s parents were not married the mother of the child would generally be granted custody and the father would have limited access to the child. The status of custody determinations throughout the country has changed, however, and the father of a child has a right to custody.
The first and most important step for a father seeking custody of a child is to establish he is the father of the child. If an unmarried woman gives birth to a child, in most cases she has the right to sole legal and physical custody of the child until the child’s father is identified. While it is generally more straightforward to determine who is the mother of a child, determining who is the father of a child is more complicated. If the mother of a child acknowledges the father of the child, either by naming him on the birth certificate or via another method, absent some outside objection, the child’s paternity will generally not be questioned regardless of a lack of definitive proof of parentage.
If a man thinks he is the father of a child but the mother disputes his parentage, he can request a paternity test. If the mother of the child will not consent to a paternity test, the father can seek court intervention and petition the court to order genetic testing. A paternity test will test the DNA of the child and the man seeking to determine parentage, to resolve whether or not the man is the child’s father. If the man is determined to be the father of the child, the court in which he sought the petition will likely issue an order or declaration that he is the father of the child.
Paternity Forms: 50-State Resources
Justia provides a comprehensive 50-state survey on paternity actions and determinations, as well as paternity forms and resources for each state.
Petition for Custody
Once it is determined that a man is the father he has a right to seek custody of the child. In the best-case scenario he will be able to come to an agreement regarding child custody with the mother of the child and will be granted access to the child without court intervention. If a child’s parents cannot come to an agreement regarding custody of a child, however, the father can file a lawsuit seeking custody of the child. Child custody is divided into physical custody, or the right to determine where the child lives, and legal custody, the right to make decisions regarding the child’s health, education and upbringing. Courts may grant one parent sole custody, but sole custody is generally reserved for cases in which one parent is unfit. Courts often grant some form of joint custody, allowing both parents to have time in which the child lives with them, and to partake in making decisions regarding the child. In all cases, the court will determine the custody arrangement it feels to be in the best interest of the child.
Petition for Name Change
If the father of a child is disputed or unknown at the time of the child’s birth, the child will likely have the mother’s last name. Additionally, a mother may choose not to give a child the father’s last name for personal reasons. If a child does not have the same last name as his or her father, the father may wish to petition the court that has jurisdiction over the custody case to change the last name of the child. Whether the court will change a child’s last name generally depends on several factors, including the age of the child and what effect, whether good or bad, changing the child’s name will have on the child.