Who Has Custody of a Child When the Parents Aren’t Married?

Becoming a parent is an exciting and momentous occasion in anyone’s life. While it is often ultimately one of the best parts of life for many, being a parent is certainly not without its difficulties, even in the best of circumstances. Those who become parents while unmarried may experience another layer of difficulty, however, because our legal structure is often centered predominantly around children born during a marriage.

When a child is born to parties that are unmarried, various questions can often arise – among them, who should have primary custody of the child? Who will have visitation, and how often? Has paternity been definitively established, and if not, how do the parties go about doing that in order to officially determine parental rights and responsibilities?

As with many areas of the law (family law being no different) each state approaches issues of custody and parental rights in its own slightly unique way. Under Iowa law, either parent of the child can petition to request that the court make an official determination as to what rights and responsibilities they have as the parent of the child in question. This means asking the court to determine any number of issues, including paternity, custody, visitation, child support, and other similar matters. In determining custody of the child in a situation where the parents are unmarried, the first order of business is definitively identifying the parents themselves.

Determining Paternity

Legally, establishing paternity means being seen, under the law, as the child’s father. It is, of course, assumed that the mother is the child’s parent. Likewise, when a couple is married and a child is born during the marriage, it is assumed that the husband is the father of the child.

Typically, absent an agreement by the parties and a court order to the contrary, an unmarried father whose name does not appear on the child’s birth certificate lacks legal rights to things like custody and visitation of the child. In a situation where the father’s rights have not been definitively established by a court, the default under the law is for the mother to have sole legal and physical custody of the child.

If a question arises as to who may be the father of the child, there are several avenues by which the parties may establish it. One is for the parties to decide together that the man is the father and to list him accordingly on the birth certificate. Another is to obtain a DNA test, either voluntarily or by order of the court, which can definitively prove whether or not a man is the child’s father biologically speaking.

After paternity has been definitively established by one of these methods, the father may then proceed with his request for parenting time in the form of either custody or visitation.

Filing an Initial Petition

After the identity of the parents has been definitively established, the parties can begin the process of seeking to have a court establish custody matters. To do so, the party who wishes the court to take action must file a petition with the court. It is important, of course, to ensure that this petition is properly drafted and served upon the other party. While many may feel that a “do it yourself” approach is best, this can often end up resulting in more difficulty and expense in the long run as the party attempts to fix unintended errors – making the filing more difficult than it needs to be.

Addressing Temporary Issues

After the initial petition has been filed, the parties may seek for the court to address temporary matters such as who will have custody of the child during the pendency of the case, who will pay child support, how much child support will be paid, and various other immediately pertinent matters. The ideal is if the parties can decide these matters between the two of them. This limits the amount of time spent in court, the cost, and avoids placing this important decision in the hands of a stranger (a judge). But the court will make a final determination on any issues that are not agreed upon by the parties.

Discovery and Determination

After temporary matters have been addressed, the “discovery” portion of the custody determination will begin – which essentially means that the parties will begin obtaining evidence in order to prepare for either trial or negotiations. After discovery has been conducted and all evidence has been obtained, the parties can, at any time, reach an agreement on their own (often called a settlement or custody agreement). If not, the court will decide the case.

As mentioned previously, it is ideal for the parents, if they have an amicable relationship, to enter into a custody agreement on their own if they are able to agree on terms and arrangements that will best fit their circumstances. Not only does doing so avoid much time and expense in going to court, but it gives the parties the power to make those decisions themselves. The alternative is to bring all of the evidence into court and have a judge, who is a stranger—who doesn’t know either of the parties or the child or children involved—make these important life decisions. Judges are people, too, and they are tasked with making these very important decisions with comparatively little information.

In the case when the parties are simply not able to come to an agreement on custody, the matter will be determined by the court. In making that determination, the court will consider a number of factors, including, predominantly, what is in the “best interests of the child.” The court will take into consideration the physical, psychological, and emotional needs of the child, the capacity of each parent to care for and provide for the child, and, if the child is old enough, the court may consider the wishes of the child. Other factors, such as any history of domestic violence, the geographic proximity of the parents, and the relational history of the parties will also be taken into consideration in making an ultimate determination as to custody and visitation.

Why 303 Legal

At 303 Legal, we understand that family law can be a complex and often confusing matter, made even more so by the many strong emotions that are often involved. This is no wonder, as something as important as establishing your right to custody and visitation of your child is one of the most important issues for most parents. At 303 Legal, we have significant knowledge and experience in doing exactly that, and we would be honored to help you through this part of your parenting journey. Call us today.