Although custody laws differ from state to state, there are some similarities across all 50 states regarding basic issues of custody, according to Child Welfare Information Gateway. When the mother and father are unwed, fatherhood must be established legally. This can be a straightforward process if the father's name is on the birth certificate or if the mother does not question paternity or contest custody. The process becomes more complicated when the mother raises questions about paternity or custody. Custody rights, once established, create legal responsibilities.
Definition of Father
If a mother and father are not married, or if paternity is questioned, legal definitions of fatherhood must be invoked to obtain a father's custody and visitation rights. Legal definitions of fatherhood vary across jurisdictions, but can include being declared as the father on the child's birth certificate; living with the mother and identifying oneself as the father; being signified in a legal document by the mother to be the father; or having a court of law determine that the man is the legal father. Courts honor the results of DNA testing, so if a mother questions paternity and denies custody rights, the presumed father should immediately file for paternity testing. This should be done in family court in the jurisdiction of the mother and child. The court will then order DNA testing. Custody rights will be granted once paternity is established.
Custody
Custody is the right of biological fathers and mothers to participate in important decisions regarding their child, including residence, health care, religious upbringing and education. Once paternity is established, courts usually grant joint custody, thereby providing rights to participate in these decisions to both the mother and the father. According to the Child Welfare Information Gateway, extenuating circumstances can influence the court's inclination to grant joint custody. If one or both parents are unfit, in prison, absent, neglectful, abusive or harmful to the child's well-being, the courts can limit custody and visitation rights.
Physical Custody
Physical custody pertains to the residence where the child spends most of his time. When the parents have never been married, unless the legally-established father applies in court for physical custody, physical custody is almost always assigned to the mother. Courts rarely assign physical custody to unwed fathers, except in circumstances where the mother is determined by the courts to be unfit. In divorce cases, many courts grant joint physical custody, meaning that the child will spend equal amounts of time living with each parent. If the parents live far apart, if one parent contests the other parent's fitness or there are other significant obstacles, the court may grant primary custody to one parent.
Visitation
Fathers who are granted neither joint physical custody nor primary custody are usually given visitation rights. Courts serve to act in the best interest of the child, which normally includes providing the "reasonable" opportunity to spend time with the father. If the father and mother cannot agree on what constitutes "reasonable," courts can establish a visitation schedule. Typically, this will include some days of the week, all or some weekends, holidays and parts of vacations, as well as other occasions such as birthdays.
Responsibilities
Parental responsibilities accompany a father's rights. Fathers are usually expected to pay child custody, medical and health expenses. If the father dies without a will, the child is legally entitled to the father's estate.
