Do I have to file for child custody if we are not married? 33 Answers as of August 24, 2011

I am pregnant with my first child, the father and I are not married. We have tried throughout the pregnancy to make it work but it just will not. After pressing charges because he physically assaulted me while 5 months pregnant, he asked me to drop charges because of his military career. He also mentioned he was relinquishing his rights and before I decided to move, he signed a paper stating so. I really fear for me and my child, to have him in our lives even just for visitation. I'm curious to know that if we are not married once the baby is born, do I have to file for custody or do I automatically get custody? What happens if I choose not to file for child support and have him out of my life and my child's life?

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Law Office of Karen A. Clark, L.L.C.
Law Office of Karen A. Clark, L.L.C. | Karen A. Clark
To file for child support or not, does not determine the parent's obligation to his/her child. In general, all parents have the duty to support their children regardless of their involvement in their children's lives. Even an abusive parent has the obligation to support his/her children. In general, when one relinquishes parental rights, s/he is giving up the right to custody, visitation, any type of input in the child's life, etc. This is usually achieved by way of a court proceeding. Simply saying that one is relinquishing his/her parental rights usually is not enough. I would suggest that you ask an attorney to review the paper that was given to you. I would also suggest that you consult with an attorney about the custody issue. If you fear for your safety or your child's safety, you might want to consider the possibility of a order prohibiting contact between you and your ex.
Answer Applies to: Washington
Replied: 8/24/2011
Bagwell Holt Smith Jones & Crowson, P.A.
Bagwell Holt Smith Jones & Crowson, P.A. | John G. Miskey IV
You will not automatically be awarded custody of the minor child whether or not you are married. After the child is born, either try to work out a Parenting Agreement or file a claim for custody. Speak with an attorney.
Answer Applies to: North Carolina
Replied: 8/24/2011
Law Office of Roianne H. Conner
Law Office of Roianne H. Conner | Roianne Houlton Conner
A child born outside a marriage is presumed to be the child of the mother. However, you could file in the Child Support Court in the County in which you and the baby reside, after the baby is born, for custody.
Answer Applies to: Alabama
Replied: 8/21/2011
Petit & Dommershausen SC
Petit & Dommershausen SC | Tajara Dommershausen
If there is not a court decision, you have sole legal custody and placement.
Answer Applies to: Wisconsin
Replied: 8/20/2011
The Davies Law Firm, P.A.
The Davies Law Firm, P.A. | Robert F. Davies, Esq.
You need a lawyer. You need to protect yourself and your child, and he needs to help pay the costs of raising that child. This is very important. You need to be safe from him.
Answer Applies to: New Jersey
Replied: 8/21/2011
    Horizons Law Group, LLC
    Horizons Law Group, LLC | Michelle B. Fitzgerald
    You will have sole custody/rights to the child unless he comes back to file for rights through the court. After your child is born, you can consider termination of parental rights (separate court proceding) so that he can't come back to ask for rights.
    Answer Applies to: Wisconsin
    Replied: 8/20/2011
    Meriwether & Tharp LLC
    Meriwether & Tharp LLC | Patrick Meriwether
    In Georgia, until the father obtains a "Legitimation" Order from a Judge, he has no legal rights to a child born out of wedlock. For him to obtain such an order, he would have to file a legitimation action in Court and serve you with notice of that action.
    Answer Applies to: Georgia
    Replied: 8/20/2011
    Law Offices of Paul A. Eads, A.P.C.
    Law Offices of Paul A. Eads, A.P.C. | Paul A. Eads
    File a paternity action for custody &/or support.
    Answer Applies to: California
    Replied: 8/20/2011
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    It is a bit unclear what you are trying to accomplish. A relinquishment of custody does not limit your ability to seek child support. You probably should consult with qualified family law counsel.
    Answer Applies to: Nevada
    Replied: 8/20/2011
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    You will have custody and the father will need to file a custody action if he wants to establish himself as the father and gain visitation rights. I would typically encourage you to go after your child support and get a restraining order against him if needed.
    Answer Applies to: California
    Replied: 8/20/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    The first question will be whether, when the baby is born, the man you say is the father will admit paternity and agree to have his name listed on the birth certificate. If he refuses to do so, you will then need to decide whether you want to file a paternity case to have him determined to be the legal father and to pay child support. If you file that case, he can choose to request specific parenting rights and responsibilities and, if he does, a judge will decide what kind of parenting plan is necessary and in the child's best interest. If father is in the military and admits being the father (or when a judge rules that he is), the child will be eligible for military medical benefits. The father cannot simple "relinquish" his rights, especially even before birth unless there is some other person seeking to adopt the child. That means that the father will be subject to child support from the day of birth until the child is 19, but it will be your responsibility to get child support ordered by a court because there is nothing saying he has to pay until there is a court order. If you do nothing, as the mother you have exclusive legal authority as the child's only parent so you do not need to seek custody decisions unless and until the father does.
    Answer Applies to: Colorado
    Replied: 8/19/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    You are automatically the custodial parent until a court determines that he is the biological father, thereby establishing his rights as the biological father. He can do this by filing a paternity action. But, until he does, you are the custodial parent. This remains the same even if you file for child support because all they do is establish that he is the dad and what the child support should be. He would still need to file a paternity action in order to establish any sort of visitation.
    Answer Applies to: Florida
    Replied: 8/19/2011
    Michael D. Fluke, P.A.
    Michael D. Fluke, P.A. | Michael D. Fluke
    If you are not married and he takes no action to establish himself as the legal father of the child, you are the sole custodian of the child and he has no rights. If you never file for child support, he may never take any action to establish himself as the father. I suggest you consult an experienced Family Law attorney to discuss your case in greater detail and learn all of your rights and options.
    Answer Applies to: Florida
    Replied: 8/19/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    You automatically have custody. If the father wants visitation rights or you want child support, a paternity action must be filed in court or Dad and you must sign an affidavit of paternity acknowledging he is the father. That is a document different from the birth certificate.
    Answer Applies to: Michigan
    Replied: 8/19/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    If he doesn't want to see the child and you don't want child support, you don't have to do anything. If you receive any public assistance benefits, the state will require him to pay child support. He cannot legally relinquish his parental rights and responsibilities unless the child is adopted. If and when you marry, you and your new spouse could do a step-parent adoption to legally terminate the biological father's rights and responsibilities.
    Answer Applies to: Oregon
    Replied: 8/19/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    A parent may always seek to establish paternity, custody and child support. They cannot relinquish their rights before a child is born. In a situation where the parents are unmarried, the mother is the presumptive custodial parent and the father has no enforceable rights unless and until they are established by a court.
    Answer Applies to: Minnesota
    Replied: 8/19/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    The only way to have his parental rights terminated, without State action, is via adoption (e.g., your new spouse).
    Answer Applies to: Washington
    Replied: 8/19/2011
    Theiler & Mourtos Attorneys at Law
    Theiler & Mourtos Attorneys at Law | Devan J. Theiler, Esq.
    You are never required to institute any legal action against someone else. To that effect, you could (assuming he gave his permission for you to take the child out of the state), move away, not collect child support, not offer visits and never file anything in the Courts. Be aware, however, that none of that prevents him from filing with the Courts to establish a parenting time schedule. So while you do not have to implement proceedings, the possibility of ending up in Court and/or him having visits with your child always exists.
    Answer Applies to: New Jersey
    Replied: 8/19/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    First, you are going to have to file to establish paternity. This is because the two of you were not married. Without that finding, your child cannot inherit from the father and you cannot get child support from the father. Doing this now will likely be a little easier because you know where the father is. So, you're not going to have to search all over the planet for him. Finally, the fact that there is a relatively free incident of domestic violence should give you a leg up, at least for now, in any battle over custody.
    Answer Applies to: Washington
    Replied: 8/19/2011
    Law Office of Richard B. Kell
    Law Office of Richard B. Kell | Richard B. Kell
    Since the two of you were never married, you will have sole legal and physical custody of your child by default. However, this leaves two issues: (1) You will still have to file an action in court in order to establish any child support; (2) The father can also file an action to establish custody/visitation rights. Thus, it's always best to go ahead and file an action to have everything established yourself. That way, you will have a court order to rely upon.
    Answer Applies to: Massachusetts
    Replied: 8/19/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    You don't have to file for custody orders. You are the only established parent. As for obtaining child support, you don't have to request it if you don't want it (provided you aren't on cash assistance).
    Answer Applies to: California
    Replied: 8/19/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    You need to file a petition for paternity to establish the father's legal obligations and a motion asking for sole legal and physical custody as well as child support.
    Answer Applies to: California
    Replied: 8/19/2011
    Edward Papa, Esq.
    Edward Papa, Esq. | Edward Papa
    You will have sole physical custody from birth. Whether you name him on the birth certificate or not, he can establish paternity after the child's birth and ask for visitation. Usually, it is best is to name him and go to family court and get custody, child support and a restraining order instead of visitation.
    Answer Applies to: New York
    Replied: 8/19/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    In Washington without a court order to the contrary, the Father has as much right and responsibilities to the child as you do, despite whatever he has signed.You need to file a parentage action as soon as the child is born to establish appropriate contact between the child and both parents, which in this case may be very limited and supervised for the Father.The Father cannot relinquish his responsibilities of providing for the child unless someone else is going to replace him.
    Answer Applies to: Washington
    Replied: 8/19/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    It was a huge mistake not to prosecute an abuser. That leaves you more vulnerable to future attacks and eliminates evidence if there is ever a custody case. There is no such thing as him relinquishing rights. He has a duty, which belongs to the child, to support the child. The document has the value of used toilet paper. However, save it for 18 years as evidence of his unfitness. In Georgia, unless he legitimizes the child, you have full and sole custody and he has no right to see the child. He does however have a duty to pay support.
    Answer Applies to: Georgia
    Replied: 8/19/2011
    The Law Offices of Robert W. Bellamy
    The Law Offices of Robert W. Bellamy | Robert W. Bellamy
    You'll need to get a paternity test done and file for child support. He would have to file in court to get custody,You'll have custody. And to win he would have to show you were not fit to be a mother (hard to do). Judge will look at best interest of child. I once heard a judge say "it takes two to make a baby." If you do not ask for child support, you are hurting the child, not yourself. Are you that selfish?
    Answer Applies to: Alabama
    Replied: 8/19/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    When the baby is born neither of you technically have superior rights to the child over the other parent. Court orders would guarantee you superior custody rights. Or, you may wish to have him terminate his parental rights by consent in Probate Court when the baby is born, so that he will have no right to assert custody or other parental rights into the future. However, the termination of parental rights would also extinguish any obligation he would have to pay child support.
    Answer Applies to: Connecticut
    Replied: 8/19/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    Under Georgia law the biological mother of a child born out of wedlock automatically has all power, custody, and control over the child and it remains so unless and until the father files a legitimation action; so you automatically have custody and do not have to file anything for custody. In regarding to child support, if you choose not to file that is your choice, but whether the child is out of the father's life would be determined by a court if he should file a legitimation petition.
    Answer Applies to: Georgia
    Replied: 8/19/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    He will always be the father unless you petition the probate court for a termination of his parental rights. If you are receiving any type of state assistance, they will require that you name the father and they will go after him for child support.
    Answer Applies to: Connecticut
    Replied: 8/19/2011
    The English Law Firm
    The English Law Firm | Robert English
    Each party has custody rights. To confirm your custody rights, you would have to file a parentage action.
    Answer Applies to: California
    Replied: 8/19/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    You automatically have custody once the child is born. You can file a motion to get an order that states as much. You do not have to ask for support if you don't want. So, if he does not want to see the child and you will not ask for support then that is fine. However, it is now becoming difficult to a passport for a child without both parents to sign or a court order. You might want to check on the requirements for passports before you decide whether you will file or not.
    Answer Applies to: California
    Replied: 8/19/2011
Click to View More Answers:
12 3 4 5 6 Free Legal QuestionsConnect with a local attorney