Who Gets Child Custody If We Aren’t Married?

Many parents who have a child while not married wonder what to do when trying to protect their legal and physical custodial rights to their child(ren). The mother of a child born out of wedlock is the only legal parent of the child and has all rights to the child. Yes, that is no typo – the mother is the only legal parent of the child and is the only person with legal rights to the child. So what about the father? The father must legitimate the child(ren) to get any legal or physical custodial rights to the child.

In the past, there are have been several fathers who mistakenly believe they have legal rights to their biological child because they “signed documentation at the hospital,” or are listed as the father on the child’s birth certificate.

A father in Georgia can establish paternity by being on the child’s birth certificate and filing such with the state office of vital records, and/or by signing an acknowledgment of paternity which is filed with the putative father registry. Once paternity is established, the mother has a right to seek child support from the biological father.

However, being recognized as a biological father does not mean you are recognized as a legal father, even though you are legally bound to provide support for your child. Until a father legitimates his relationship with his child, the mother of the child has all rights to the child and has the power to make all decisions concerning the child. While Georgia law provides for fathers to be able to establish paternity administratively, without the need for Court intervention, there are currently no similar provisions for legitimation.

Congress attempted to make the process easier for fathers by adopting a law for voluntary legitimation, however, the statute did nothing to reduce litigation, created much confusion, and left the impression with fathers that they had certain rights to their child, when they in fact, did not. This confusing statute was finally repealed in 2016 and is no longer in effect. In Georgia, the only way for an unwed father to gain any rights to their child is to file an action for legitimation, asking that they be declared the legal father to the child, and having a Judge declare that the legitimation is in the best interest of the child.

Before a father takes any steps towards separating from the mother he should speak with an experienced attorney.

With offices in Alpharetta, Buckhead, Dunwoody and Marietta, the family lawyers at Stearns-Montgomery & Proctor provide experienced divorce representation throughout the greater Atlanta metropolitan area. If you are contemplating divorce or adjusting to life after divorce and would like to speak with an attorney, we invite you to get in touch. To schedule a confidential consultation at one of our four convenient locations, please call (678) 971-3413 or request an appointment online today. Weekend and evening appointments are available.