Who Has Custody of a Child When the Parents Are Not Married?

Who Has Custody of a Child When the Parents Are Not Married?
January 13, 2022

Ohio families come in all shapes and sizes, but the goal is the same: to take care of each other and provide for any children. But in cases where the law doesn’t recognize a relationship or the situation is less than healthy, parental custody and visitation could come into question. 

According to the most recent statistics from the CDC, nearly half of all children born in Ohio are born to unmarried parents. https://www.cdc.gov/nchs/pressroom/states/ohio/ohio.htm.  The Law Offices Of Cara L. Santosuosso, LLC understand the legal challenges that unmarried mothers and fathers face when it comes to figuring out how best to care for their children. And as child custody lawyers, we’re here to help.

Child Custody in Ohio

For married couples looking to separate or divorce, a custody determination isn’t based on gender, but on the best interests of the child. In general, shared parenting is typically seen as the best approach. When a couple is unmarried, the situation is quite different. In Ohio, an unmarried woman who gives birth to a child is automatically, by statute, the sole residential parent and legal custodian of the child, unless and until a court orders otherwise. This does not mean that unmarried fathers have no rights to their children - but there are a few extra steps unmarried fathers need to take to formalize those rights. 

An unmarried mother doesn’t need to do anything to prove her parental status outside of providing a birth certificate; and, she doesn’t need to file any legal documents to secure custody––it’s a given. This is true even if the unmarried mother and father are a couple, if they live together, and if the father has an active role in the child’s life. So, while he may take on the responsibilities of providing for the child and being present for them, the courts don’t recognize an unmarried father as a legal parent without a court order specifically outlining his rights.

Without such a court order, unmarried mothers are able to decide every aspect of a child’s care, from decisions about medical treatment and education to determination of religious upbringing. For an unmarried father to legally participate in decision-making, they must first establish paternity, and petition the court for sole custody or shared parenting.

It’s important for fathers to know their rights, and to remember that in the end their aim is to have a strong, happy, and healthy relationship with their child. This fundamental goal can keep fathers on track as they learn about their rights and what needs to be done to secure them.

Unmarried Fathers’ Rights in Ohio

Unmarried mothers have unshakable evidence that they are their child’s parent––they gave birth after all. For unmarried fathers, though, the proof that a child is theirs and the legal right to share custody and have a say in the child’s care needs to be proven by other means. This is even true if the mother lists him on the birth certificate. The courts simply require more information. So, unmarried fathers in Ohio who want to establish paternity will need to take additional legal steps in an effort to protect their parental rights. A few of these steps might be:

  • Acknowledgement of Paternity Affidavit — If a child’s unmarried mother and father both agree that they are the child’s parents, they can sign this form to establish a father’s paternity. This can be done at the hospital at the time of the child’s birth, at the local health department, or at the Child Support Enforcement Agency (CSEA). Fathers then take on the natural duty to support the child, a responsibility which is enforceable by the CSEA or a court. 
  • Enlist the Child Support Enforcement Agency (CSEA) — The CSEA can formally determine paternity through an administrative proceeding with DNA testing.
  • Court Complaint — The court can order genetic testing to establish paternity upon the filing of a complaint, and may subsequently order a parent to pay child support.

For unmarried fathers who are still in a relationship with the mother and are possibly living under the same roof, they could feel that since they have access to their child, going through the legal system isn’t necessary. However, should the relationship sour or a situation develop in which the child’s mother decides to deny access to her child, she is well within her legal rights to do so. Unless there is a court order to the contrary, any companionship between an unmarried father and his child is at the mother’s discretion. The state will stand by her and a father won’t be recognized as a parent with custodial rights unless he first legally establishes paternity and obtains an order for companionship.

Child Support and Visitation

Fathers who pay child support may feel that their financial investment entitles them to visitation. But that’s not what the law details––a child support order has no effect on an unmarried father’s rights to visit with his child. Continuing to pay support is important, since it directly affects their child’s wellbeing. If fathers feel the natural, justifiable desire to have a meaningful relationship with their child, it would be best to partner with a child custody lawyer to use the appropriate legal means to establish paternity and petition for the rights they seek.

Allocation of Parental Rights and Responsibilities - aka Child Custody

Once paternity is established, an unmarried father may seek custody of their child. But, unless the living conditions at the child’s mother’s home jeopardize the child’s health or wellbeing, it isn’t likely that sole custody will be awarded. Courts often prefer shared custody and try to allow parents equal access to companionship with the child once paternity is established. The court looks in detail at which parent spends the most time taking care of the child, along with a host of other factors, like mental and physical health of the parents, relationships with other family members, and whether there is any history of domestic violence, to name just a few. 

Courts will then use this information and other factors to determine whether grounds for full custody of the child exist. In some cases it could be found that a parent is unfit, by legal definition. This would be a serious decision and often requires evidence of some form of abuse, violence, or neglect. The court could also take into account the child’s feelings if they’re old enough to express themselves. Of course, trying to prove a parent unfit is not a casual matter. Allegations of parental unfitness may do more harm than good if they are made solely in an attempt to gain full custody, and not out of a genuine concern for the child’s welfare. If either parent suspects child abuse or neglect, working with a child custody lawyer is the best way to uncover the truth and protect their child.

Work with an Experienced Ohio Child Custody Attorney

Every family situation is unique and requires and deserves individual attention. If you are an unmarried parent in Ohio and would like to protect your parental rights, the Law Offices Of Cara L. Santosuosso, LLC is here to help. We are advocates for families and want nothing more than for children to be surrounded by loving, caring adults. 

Unmarried fathers who want to be involved in their children’s lives could end up endlessly frustrated that they aren’t legally recognized. If that’s where you find yourself and you’re looking for help from a child custody lawyer, then please reach out to us today to schedule a confidential consultation. We know what the law requires and can work with you to help you establish your paternity, getting you on the path to legalizing the parental rights you deserve. Your relationship with your child is worth whatever efforts it takes, and we’ll be with you every step of the way.