Unmarried Mothers' Rights to Child Custody

By Pamela Gentry

Updated June 13, 2017

Mother reading  book baby in bed before going to sleep

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When a couple is married and has a child together, the legal system assumes that her husband is the father, and he shares rights to the child automatically 13. However, when an unmarried woman has a child, the identity of the father remains unassumed until he establishes paternity legally. Until this time, an unmarried mother has complete legal rights and control over the welfare of the child 13.

Primary Right to Custody

According to Legal Match, an unmarried mother retains the primary natural right to custody of any child born out of wedlock 13. This means that the courts automatically consider the mother's rights to be superior to the father's, unless the mother is proven unfit or abandons the child.

Establishment of Paternity

According to Find Law, a mother might not be able to seek child support from the father if he has not legally established paternity. In such a case, the father also has no legal rights to the child whatsoever 13. An unwed father can legally establish paternity in two ways: by a DNA paternity test or by signing a voluntary declaration of paternity when the child is born. If the father wishes to be listed as the legal father and the mother denies this, he has the right to petition the court for paternity 13.

Factors Involved

If the court becomes involved in a custody dispute, there are many factors that can determine whether the father gets any visitation or even partial custody. The court's ultimate goal in custody disputes is to determine what is in the best interest of the child. According to Legal Match, factors that might influence the court include the "moral character" of each parent, the financial status of each parent and who has been the primary caregiver of the child 13.

Child Support

Once the courts accept paternity, the father is financially responsible for the child, regardless of whether the court also grants him any visitation rights. The courts could issue an enforceable child support order requiring that the father make regular payments of a court-determined amount directly to the state in which the mother resides. In an enforceable child support order, interest accrues as much as 10 percent a year on any existing unpaid amounts. According to Find Law, there are also provisions under law that might add an extra 6 percent penalty for late payments.


The courts can grant two types of visitation: supervised and unsupervised. If the courts grant unsupervised visitation, the parents can agree on a time and location for the visit; if they cannot agree, the court might provide the schedule and stipulations of each visit. In the case of supervised visitation, a predetermined third party must be present at each visit. According to Legal Match, the courts usually choose supervised visitation only if the father has a history of violence or is considered otherwise "threatening or unreliable. 13"