Unwed parents face the same legal obstacles as married parents when they decide to separate, mainly on who get to keep their children. Although child custody laws differ from one state to another, oftentimes, a significant consideration would be whether you’re the mother or the father.
Why the Mother?
Mothers have the natural right — for both legal and physical custody — to keep their children if they’re unmarried. Their rights are superior to any other individual, including their partner (the father). Do note, however, that these legal rights do not have an effect if the father could present undeniable evidence that the mother is unfit to care for their child or has permanently abandoned their child.
But What About the Father?
Unwed fathers have all the legal right to try and get custody of their children. In most states, if the name of the father is listed on the child's birth certificate, the court will legally recognize him as the legal father and would have equal standing with the mother in court.
With mothers, the custody rights of the father would depend on his capacity to care for their child. To that end, while unmarried fathers rarely get custody over mothers who are good or suitable parents, the court could award them visitation and custody rights.
Don’t Forget the Children
The court’s main consideration in any child custody case is the children’s best interests. This will overcome any right of the mother and father, says Miller & Steiert, P.C. and other family law attorneys in Denver.
The court would take into account many factors when determining who to award the custody to, including both parents’ moral character, the children’s primary caregiver, both parents’ financial status and earning capacity, and if the children are old enough to decide for themselves. Children have the freedom to choose who they prefer to live with.
Put simply, the children’s best interest would trump all the legal rights of both parents. While the court considers mothers (unless proven unfit to care for the children), fathers could try and obtain custody of their children, considering that they’re suitable parents in the eyes of the court.