Divorce and legal separation cases are quite complicated, especially when children are involved. If children are involved, parents have to settle disputes over custody, visitation and child support. Custody sets the main caretaker, while visitation sets how often and under what specific conditions the non-custodial parent will see the child. Also, a child support policy sets financial assistance for raising the child. These all remain true if the parents of the child are unmarried.

On the other hand, when a child is born to an unmarried mother, the mother is automatically given a sole custodianship. With this, the father has no legal right to see their child without a court order. There is no presumption with legal paternity agreements. It means that unmarried fathers, by default, are not assumed to be the biological father of the children.

Nevertheless, unmarried fathers have challenged the termination of their parental rights for the past few decades. Over the course of this blog, we will help you determine the rights of unmarried fathers. Keep reading to learn more.

What is a Paternity Agreement?

If you are married to the mother, there is a legal presumption that you are the father of the child. However, without that marital relationship, there is no legal presumption of paternity. Without legal paternity agreements, an unmarried father has no legal standing to custody and visitation.

The most common way for unmarried fathers to gain paternity agreements is to be acknowledged as a father on the child’s birth certificate. This is usually done at the hospital right after when the baby is born. Alternatively, you can gain this by completing a Voluntary Acknowledgement of Paternity Form. 

If, in any case, the child’s mother does not agree to your paternity, the next step is a legal petition for it. You can proceed to the court for a petition to gain paternity legally. As part of court proceedings, you may need to take a paternity test to prove parental status.

Factors That Courts Consider in Determining Custody and Visitation Rights

The first thing that the courts consider when determining custody and visitation rights are the best interests of the child. Generally, this includes the time spent with each parent, and if each parent is involved in the child’s fostering. Courts do not deprive parents of their rights unless they consider it necessary. Other important factors include:

• Financial Status of Each Parent: Is the parent able to adequately take care of the child in a financial aspect?
• Residence/locality of the Parents: Has the child formed strong attachments with the parent’s local community?
• Moral Character of the Parent: This evaluates whether the parent treats the child with love and respect, and can provide the child with a safe and stable environment

How to Gain Custody Rights

An unmarried man who has established paternity agreements has the same custody rights as a married father. If the single parents are living together, custody rights are not an issue. However, if they get separated, custody rights and arrangements must be established.

Generally, there are two different types of child custody. These are physical and legal. Physical custody refers to a parent’s right to have the child live with them while caring and bonding with the child. Legal custody refers to a parent’s right to make significant decisions for the child. These decisions include the education, healthcare and religion of the child. Custody arrangements vary between sole or joint physical custody and sole or joint legal custody. 

In the same vein, a parent may also have shared legal custody but only child visitation rights. Some parents can also agree to a custody arrangement between them, outside of court proceedings. However, if that isn’t possible, as a father you may need to acquire a family law attorney to seek an official to protect your parental rights. With these proceedings, you can get an enforceable court order that details the child custody rights and arrangement. 

Although some parents can agree on a custody arrangement, others may want to have the agreement approved by the court. With a court order, you can ensure future compliance even if the relationship between you and the mother or your child deteriorates.

If both parties seek court proceedings, are unmarried fathers at a disadvantage throughout the custody litigation? In some countries, there is a presumption that a child should remain with the mother unless the custody is detrimental. With the enactment of the 2011 Child Custody Act, courts are now required to consider sixteen different factors when setting custody. The factors help determine the rights of unmarried fathers.

These factors include the environment and support that each parent can give. It also provides support for extended family and considers whether there is any history of alcohol or drug abuse. Another point it considers is whether each parent encourages contact between the child and the other parent. Lastly it makes allowances for whether each parent meets the physical, emotional, developmental, and educational needs of the child.

What are the Rights of an Unmarried Father?

If you are an unmarried father, there are some crucial things that you need to understand to secure parental rights. It would help if you gained paternity agreements to prove that you are legally the child’s father. 

The failure to establish paternity and prove to the court that you are the biological father may give you no legal rights to a child. If this happens, you have no legal rights to child custody, visitation and the decision-making process for a child’s life.

Below are some rights of an unmarried father who established paternity:

• The right to decide who sees the child and for how long it will take
• The right to restrict visitation
• The right to support the child’s education
• The right to support the child’s medical treatment
• The right to get public benefits for the child

Schedule Your Appointment With Us

At Foulds & Partners, in New Brunswick, we encourage both parties to iron out their disputes. We know that when families separate, the children also go through a profoundly disruptive time. With our services, we can make this time an easier one for you.

Please schedule an appointment with us by calling our office . You can also contact us with this online form. Good luck!