A biological parent has the right to seek custody or visitation whether or not the parents were married at the time the child was born. This means that even unmarried fathers can apply for custody and visitation. When deciding on such applications, the court will consider the best interest of the child. The general presumption is that in the absence of evidence to the contrary the child benefits from the involvement of both parents.
Unmarried father seeking visitation or custody must establish paternity. Paternity can be established in many ways. The easiest way of establishing paternity is the filing of an acknowledgment of paternity by both parents with the appropriate state body. In case the paternity is dispute, the legal process must be adopted. The court can order a DNA testing to determine paternity. The application for visitation or custody can only proceed after the paternity is established. In some states, the unmarried father can request a paternity finding and visitation/custody in the same application.
The unmarried parents can enter into a parenting agreement. This agreement can specify who gets custody of the child, the visitation schedule, how the decisions that affect the welfare of the child must be taken and any other decision mutually agreed between the parents about the child and even dispute resolution methods.
The unmarried parents can file the parenting agreement in court and the court will approve the agreement and include it as part of the custody and visitation order. If the parents are unable to reach an agreement, either parent can petition the court for custody and visitation.
In the absence of an agreement, the court will hear both parents and then pass the order. This can be time consuming and a costly affair. The courts generally would like to see that both parents are involved in the upbringing of the child. However if either parent proves that granting custody or visitation rights to the other parent will or is likely to harm the child, the court will not grant the other parent custody or visitation rights. Even if the court grants visitation rights to the other parent, it will be subject to certain conditions and will generally be a supervised visitation. For example if the father has a history of drug abuse, the court will be reluctant to give custody to the father.
Generally, it is the mother who is granted custody. Very rarely do the courts grant sole custody to the father. The father will get sole custody only if it is established that the mother is incapable of raising the child or the father is the primary caregiver.
If circumstances change, either parent can apply to the court to modify the order. The court will generally modify the order if both parents agree but if one parent objects to the modification sought by the other, the court will hear both parents and then decide the application. In some states it is possible to modify custody or visitation order without court intervention but it may be difficult to legally enforce the modified terms in such cases.
If you are an unmarried father seeking custody or visitation rights, speak to an experienced attorney. You can also use the various resources on custody and visitation rights provided on this site.