If My Girlfriend Had Our Baby, Does She Have Custody?

By Anna Assad

Once your girlfriend has your baby, she is the full custodian of the child until you legally establish you're the father. Although custody laws vary among states, a child born to unmarried parents doesn't have a legal father until paternity is established, leaving the mother as the automatic custodial parent.


Once your girlfriend has your child, she usually has full legal and physical custody. The parent with legal custody makes all the important choices for the child, such as deciding health and education matters. The parents with physical custody provides a home for the child. If legal custody is shared, both parents participate in important decisions for their child. If physical custody is shared, the child may live with either parent on a schedule set by you and your girlfriend or the court. You can only petition for legal or physical custody once it's established you're the baby's biological father.

Acknowledgment of Paternity

One way to make yourself known as the baby's legal father is by filling out an acknowledgment of paternity. The acknowledgment, a form that has information about a child and his parents, serves as the legal acknowledgment by both you and your girlfriend of the child's paternity. You can usually get the form and complete it at the hospital where your child was born. The hospital files the acknowledgment with the state agency that handles paternity acknowledgments, typically the vital records department. The acknowledgment allows the vital records department to put your name as the father on the child's birth certificate. Once the form is filed, you may take your girlfriend to court to get custodial rights.

Paternity Test

If your girlfriend won't sign or declines on the paternity acknowledgment, you'll have to file a petition in the court that handles family matters. You may have to file in the county where you or the child lives, depending on local court rules. The court will order your girlfriend to bring the child in for paternity testing. Once the test results prove you're the child's biological father, the court will order the vital records department to add your name to the birth certificate. You may then file to get custodial rights once the court establishes your child's paternity.


Once your child's paternity is legally established, the parent with custody is usually entitled to child support from the noncustodial parent. If you and your girlfriend split legal and physical custody, it's possible neither party will have to pay support. The factors a judge looks at when deciding a custody case vary slightly by state, but the best interest of the child is a priority. If you take your girlfriend to court for custody, there's no guarantee you'll get it, but you should be able to get visitation. Visitation is a court order that gives you time with your child. If your girlfriend doesn't follow the visitation schedule, you can take her back to court to enforce your rights. If you do get custody, you must follow the visitation schedule the court gives your girlfriend. If circumstances change and you believe your child's visitation with your girlfriend isn't good for your child, you must file a petition in court to modify the visitation.