Child Custody for Unmarried

Who has Custody of a Child When the Parents are Not Married?

patrickcrawford | June 8, 2020

When a mother has a newborn, that mother will automatically have all of the legal parental rights and responsibilities of a mother who was married. These include the right to physical custody and the responsibility to support the child financially and emotionally.

Statistics by the Centers for Disease Control and Prevention (CDC) that 39.2 percent of children are born to unmarried mothers. As this becomes more and more common, it is important for parents to understand who gets custody of a child if they were not married.

Parental Rights of Unmarried Parents

You might be aware that parents who are divorcing must decide how they will share custody of minor children as part of their legal case. However, how do parents divide custody if they were never married and have no need to file a divorce case?

It can be more complicated for an unmarried father, however, as he is not automatically assumed to be the father of the child. Instead, legal paternity must be established if the father wishes to have parental rights, such as custody. Paternity can be established voluntarily with minimal paperwork, as long as both parents agree. 

On the other hand, if one parent challenges who is the father of the child, it might be necessary to file a paternity case in family court. Either the mother or father can bring or challenge a paternity petition. The judge will likely order a DNA test and will issue a paternity order – or not – accordingly.

Custody Arrangements

If no legal action is taken by an unmarried father to establish legal paternity, a mother will get default custody rights. This means she will have full rights to have the child live with her, travel with her, and for her make major and day-to-day decisions for the child. However, if paternity is established – voluntarily or by court order – the father can request custody rights, as well. 

There are different types of custody, including:


  • Physical custody – This determines the amount of time the child will live or spend with each parent. 
  • Legal custody – This refers to each parent’s ability to make important decisions for the child, including decisions about education, activities, religion, healthcare, and more
  • Joint or shared custody – This when parents share physical custody, legal custody, or both. Shared physical custody usually means the child spends at least 35 percent of their time living with each parent. Shared physical and legal custody is the norm unless there are extenuating circumstances.
  • Sole custody – This is when one parent has full physical and/or legal custody rights. The other parent might or might not have limited visitation rights. Sole custody often results when one parent is abusive or otherwise dangerous to the child’s well-being, or when the parents live too far from one another for shared custody to be feasible.


Parents have the opportunity to decide how to share custody. They can engage in informal negotiations with their attorneys or participate in mediation. If they reach an agreement, the court will review the agreement and can approve it. If parents cannot agree, the court will decide how they will share custody based on what is in the best interests of the child. 

Contact an Annapolis Child Custody Lawyer for the Help You Need

Whether you need to establish paternity or resolve child custody, it is important to have the right Annapolis child custody lawyer on your side. The Law Office of Patrick Crawford represents both divorcing and unmarried parents in custody cases, so please do not hesitate to call (410) 216-7905 or contact us online for more information.

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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by attorney Patrick Crawford, who has more than 16 years of legal experience practicing family law.