Do I need to file for a divorce to obtain custody of my child? 23 Answers as of May 13, 2011

I was never married, yet I have a child with my former partner. We lived together for almost 8 years. Now I am taking care of our son and his mother lives out of state. Do I need to file for a divorce to obtain custody, or do I just need to do a custody hearing?

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John E. Kirchner, Attorney at Law
John E. Kirchner, Attorney at Law | John Kirchner
If you were never married to the other parent, you can't get divorced. If there has never been any judicial determination that you are the father, you need to get that taken care in connection with a petition to allocate parental responsibilities. Colorado no longer uses the term "custody" in order to more accurately describe the rights and duties of both parents in raising a child.
Answer Applies to: Colorado
Replied: 5/13/2011
Berner Law Group, PLLC
Berner Law Group, PLLC | Jack Berner
If you live in Western Washington, please feel free to call my office to set up a free, no obligation consultation-in person or by phone-with an experienced family law attorney about your case. Generally, a cause of action is necessary for custody to be determined but if you were never married, then there'd be no basis for a divorce action. It's more than a "custody hearing". It's a whole cause of action.
Answer Applies to: Washington
Replied: 5/11/2011
Edwin Fahlen Attorney at Law
Edwin Fahlen Attorney at Law | Edwin Fahlen
You need to file a Paternity action, and obtain an award of custody of your child. This is very important because when the mother finds out, which she will, that she can come and take your child out of state, she will. Sooner or later this is usually figured out, and when you least expect it, that happens. It is always best to be prepared and take the required action now.
Answer Applies to: California
Replied: 5/10/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
No, you need to file a Suit Affecting the Parent Child Relationship asserting parentage and get custody orders.
Answer Applies to: Texas
Replied: 5/10/2011
Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
In Washington State, you can file a petition to establish a parenting plan and/or commence a paternity action.
Answer Applies to: Washington
Replied: 5/10/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    You can't file for divorce unless you were married. You need to file a parentage action.
    Answer Applies to: Washington
    Replied: 5/10/2011
    Law Office of Curry & Westgate
    Law Office of Curry & Westgate | Patrick Curry
    You need to file a paternity action for custody and visitation.
    Answer Applies to: California
    Replied: 5/10/2011
    Law Office of John C. Volz
    Law Office of John C. Volz | John C. Volz
    You do not need to file for a divorce since you were not married. There are Uniform Child Custody Petitions to enable unmarried parents to seek custody of their children.
    Answer Applies to: California
    Replied: 5/10/2011
    Lori C. Obenauf LLC
    Lori C. Obenauf LLC | Lori C. Obenauf
    A divorce is a legal proceeding to dissolve a marriage. Since you are not married, you would need to legitimate your child (assuming you did not do so administratively when the child was born). When you file the Petition to Legitimate the child, then you would also seek custody. If the mother is in agreement, then an attorney can assist you with preparing a custody / child support agreement to present to the court for it's approval.
    Answer Applies to: Georgia
    Replied: 5/9/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    If you have not been adjudicated as the parent of the child by a Court or by signing a Recognition of Parentage, you must first commence a paternity action. If paternity has been determined, you would file a custody action to have a court determine custody, parenting schedules and child support. Custody determinations are made based on what a court determines to be in the child's best interests. Until you establish custody rights, the mother may always take the child back into her care as the presumptive custodial parent. Accordingly, time is of the essence.
    Answer Applies to: Minnesota
    Replied: 5/9/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    No you would have to file custody papers.
    Answer Applies to: Connecticut
    Replied: 5/9/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    No, you say you were never married, so you do not get a divorce. You file a motion to get custody and child support. Call me, I can help you with this.
    Answer Applies to: New Jersey
    Replied: 5/9/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    If you were not married you cannot divorce. You would probably want to file for establishment of a parenting plan.
    Answer Applies to: Washington
    Replied: 5/9/2011
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    You must file a Paternity action. It will be similar to a dissolution action, with some different forms, without the actual divorce. It establishes paternity, custody and visitation, and child support.
    Answer Applies to: California
    Replied: 5/9/2011
    Michael Anthony Wing, P.C.
    Michael Anthony Wing, P.C. | Michael Anthony Wing
    If you held yourself out as husband and wife, then you may well be common law married and could file for divorce. If not, just file for custody. Stay well.
    Answer Applies to: Alabama
    Replied: 5/9/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    If you were never married, you cannot file for divorce. In California, to get custody orders for a child born out of wedlock, you have to file a Petition to Establish a Parental Relationship. If you are in my area, contact me for a free consultation.
    Answer Applies to: California
    Replied: 5/9/2011
    Goodman, Dicus, and Teinert, LLP
    Goodman, Dicus, and Teinert, LLP | Paul M. Teinert
    You cannot obtain a divorce if you were never married. What you would need to do is open a paternity case. This process will establish the paternity of your child and will also allow you the opportunity to get an order for custody, visitation and child support. Because these can be complicated issues it's best if you consult and attorney.
    Answer Applies to: California
    Replied: 5/9/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    If you were never married to the child's mother, you can't divorce her. If you want to establish your rights regarding your child, you should file, serve and prosecute a Paternity case under the Uniform Parentage Act.
    Answer Applies to: California
    Replied: 5/9/2011
    Law Office of Richard B. Kell
    Law Office of Richard B. Kell | Richard B. Kell
    Yes, you need to file a complaint for custody and attend a hearing for that. But unless you plan on having a full trial against the mother, you will need to have a comprehensive custody agreement drafted for the two of you to review and sign. You will need a family law attorney for this. Best of luck.
    Answer Applies to: Massachusetts
    Replied: 5/9/2011
    Pisarra and Grist
    Pisarra and Grist | David T. Pisarra
    You need to file a Paternity action and secure your rights immediately. Also you can read my book, A MAN'S GUIDE TO CHILD CUSTODY available online and as an E-Book on my website.
    Answer Applies to: California
    Replied: 5/9/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    In California, when the parents never married and one parent is seeking custody orders, that parent needs to open a parentage case. You start by filing with the court (and having served on the other parent) the following papers: Petition to Establish Parental Relationship (form FL-200), Summons (form FL-210), and other related papers depending on the facts.

    You can get free assistance at your local courthouse legal self-help center, or better yet, if you can afford a lawyer, call a local family law attorney for help. I'm sure you can find one on this site. If in Marin or Sonoma County, feel free to call my office.

    You can also self-educate by reading info here: http://www.courtinfo.ca.gov/selfhelp/family/parentage/index.htm . Good luck!
    Answer Applies to: California
    Replied: 5/9/2011
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