The Custody of Kids When Not Married in Mississippi

By Beverly Bird

Mother talking to son

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In most states, when an unmarried woman gives birth, she automatically and legally has sole custody of her child. Mississippi is no exception. When a married woman has a child, the state presumes that her husband is the father. In legal terms, “presumes” means that it is true until proved otherwise to a court's satisfaction. If the woman is not married, her child has no presumed father. Her child’s biological father therefore has no rights unless he takes steps to correct the situation.

Voluntary Acknowledgment of Paternity

Mississippi law requires medical professionals to offer parents the right to make a voluntary acknowledgment of paternity when babies are delivered to unmarried couples. However, the acknowledgment is not necessarily binding and it does not legally establish paternal rights for the unmarried father. Either parent has the right to rescind the acknowledgement for up to 60 days. Even after 60 days, either parent can withdraw the acknowledgment for good cause by petitioning the court. For example, a blood test might have shown that the man was not the baby's father after all.

Establishing Paternity Through the Court

Even if he acknowledges paternity, a father must also legally establish his paternity to have any chance of gaining custodial rights. In Mississippi, the first step of this process is filing a petition with the court, requesting a paternity test. The court will order the mother, the father and the child to appear at a lab facility approved by the Mississippi Department of Human Services. If the results indicate at least a 98 percent probability that the man is the child’s biological father, the law presumes paternity, just as it would if the mother had been married to him at the time she gave birth. The court will then issue an order legally establishing him as the child’s father.

Establishing Custody Terms

Legal establishment of paternity does not automatically award an unwed father custody; it only means that he’s in a position to ask the court for it. After a court legally acknowledges paternity, an unmarried father can file a second petition with the court, seeking custody. In reality, unless the mother is unfit in some respect, it’s highly unlikely that a court would remove the child from her care and give full legal and physical custody to the father. However, if she is unfit, the father has the option of proving it to the court, so he can get custody. If the mother is a good parent, he can at least get visitation and parenting time with the child incorporated into a custody order.

Necessity of Custody Order

An unmarried mother can also petition the court to ask for genetic testing if the father isn’t interested in establishing paternity. For example, she might want an order of child support. A positive paternity test does not mean she automatically gets child support; she would have to file a separate petition asking for it after custody is determined. However, she can’t get child support until paternity is proven.