What Rights Does the Father Have if There Is No Established Child Custody?

Jupiterimages/Comstock/Getty Images

Whether a couple was never married or they are going through a divorce, if children are involved, custody and visitation has to be addressed. However, it can take time to get a court date and settle these issues from a legal perspective. In the meantime, the father still has rights to his children until a custody order is in place.

Legal Rights

The legal custody of a child refers to the right to make decisions for the child and the right to access his medical and school records. As long as the father is listed on the birth certificate, the legal custody of the child is considered to be shared. If he is not on the birth certificate, he would need to get a paternity test or file an affadavit of paternity to establish that he is the father of the child. Even after the orders are in place, odds are that legal custody will be shared by both parents.

Visitation Rights When Married

When a couple is married, both parents have equal rights to see the child, even when they split up. However, this can complicate matters. Until the court orders otherwise, either parent could take the child and refuse to return her to the other parent with no legal recourse. Some parents will keep the other parent from taking the child to ensure they get primary physical custody. The courts do not appreciate when a parent does this, though, and the custody decision will reflect that.

Visitation Rights Without Marriage

While these rights can vary depending on what state the case is in, for the most part, the mother has full physical custody if the father is not listed on the birth certificate. In some states, putting an unmarried father onto the birth certificate is option. In others, the mother legally cannot put an unmarried father onto the birth certficate. To be put on the birth certificate, the father must request a paternity test or file an affadavit of paternity, admitting that he is the father. However, the mother will still have full physical custody until the father petitions for visitation or custody.


Since some parents do choose to keep the child away from his other parent, it is important for a father to know what can be done if this happens. Because both parents can legally do this, if it happens, the father can file an emergency petition to get temporary orders put into place. The courts do not like when one parent interferes with the parent/child relationship and will act on it. A divorce does not need to be final for temporary orders to be enacted. Filing for these orders will help prevent this problem from being an issue in the future.