Parents have the same rights to their children if they are married or unmarried, right?
Wrong.
Most people do not realize that there are different custody rights if parents are married or unmarried! Your relationship status impacts your custody. A child born to parents who have never married is still referred to by the legal system as a child out of wedlock.
When parents are unmarried, in most states, the Mother automatically has custody (legal and physical) of the child. This is referred to as presumptive custody. Until, and unless, a Court enters an Order/Judgment otherwise, the Mother has sole custody of the child or children. Even if the parents are in a relationship and live as a family, if they are unmarried, legally, the Mother retains custody of the child. Therefore, if the relationship breaks up and the parties do not communicate, the Father needs to petition the Court for parenting time and the ability to make decisions for the child. If you are unmarried parents, and you want to overcome the presumption that Mother has custody, it is important to address the matter with the Court, and get an Order.
If you are married, you share custody with your spouse. Either party could need to file a custody case if the other parent keeps the child from you or does not let you make life decisions with regard to the child, but they do not need one to establish custody. If the marriage breaks up, there is not presumptive custody for the Mother.
Of course, not all children fall neatly into one of the two above categories. People can be married, but birth children not of the marriage.
If a woman gives birth to a child while she is married, although the Husband is not the biological parent, he is presumed the child’s legal parent under most state law. As the legal father of the children born during his marriage, a husband may have custody and parenting and may also have the responsibilities including payment for the child. The reverse is not generally true however. If a man fathers another woman’s child while he is married, his wife is not the legal mother of the child.
Celebrity fact pattern: This was an issue that reality TV star, Kim Kardashian, ran into while still legally married to NBA player, Kris Humphries. After separation, but before divorce, she became pregnant with musician, Kanye West’s child. The “presumed law” was that because Kim was married to Kris, it was his baby. At the time he could have attempted to claim custody of the child. There was much speculation as to how the drama would unfold. Fortunately for Kim, she was able to finalize her divorce proceeding before the birth of her daughter, and avoid further contentious legal proceedings.
DISCLAIMER: This is not intended to be individual legal advice of any kind, and each divorce matter is fact-specific and state-specific. We advise you to seek independent legal advice as it pertains to you and your case matter.