The Unmarried Father’s Rights

The belief that unmarried fathers “have no rights” with respect to children born out of wedlock is a common misunderstanding of Nevada law.  In reality, all parents, whether married or not, have co-equal rights regarding their children from the moment those children are born.  However, as a practical matter, it can be difficult for a father to effectively assert those rights absent an official document establishing his paternity and custody rights to the child.

The language of NRS 126.031 explains the relationship that exists between father and child, regardless of whether the parents were married at the time of the child’s birth:

1.  The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.

2.  Except as otherwise provided in a court order for the custody of a child:

(a) Except as otherwise provided in paragraph (b), the mother of a child born out of wedlock has primary physical custody of the child if:

(1) The mother has not married the father of the child; and

(2) A judgment or order of a court, or a judgment or order entered pursuant to an expedited process, determining the paternity of the child has not been entered.

As you can see from the first paragraph, the relationship between father and child is not dependent on whether the parents were married.  The misconception arises due to the language in subsection 2, which states that an unmarried mother has primary (not sole) custody of the child absent an order determining the child’s paternity.

What is not commonly known is that the execution of a voluntary acknowledgement of paternity becomes a “judgment determining paternity” if it is not challenged within 60 days of its signing.  NRS 126.053.  This document is routinely presented to both mother and father at the hospital and is often signed by both parties in conjunction with the application for birth certificate.  Assuming this document is not challenged within 60 days, the father’s paternity is established and subsection 2 of NRS 126.031 awarding primary custody to the mother becomes ineffective by its own terms.

At that point, there should be no legal difference between an unmarried mother and father with respect to each individual’s custodial rights.  Unfortunately, NRS 126.031 leaves open the question of custody when paternity has been established, but there is no court order establishing custody.  As such, law enforcement officials routinely and erroneously side with the mother of the child in any custody dispute unless the father presents a court order specifically detailing his custodial rights.  This mistake by law enforcement perpetuates the belief that a father’s relationship to his child is controlled by the whim of the custodial mother.

The best and most practical solution for a father in this position is to immediately file a complaint and motion to establish custody in the district court.  During your court proceeding, the judge can issue orders to ensure that you have meaningful contact with your child and ensure that the child’s needs are being met.

However, before you take any action, you should speak with an attorney about the specific facts of your case.  Each case is as unique as the family it involves and an attorney can advise you of the best course of action to take based on your unique circumstances.

 

This entry was posted in Family law. Bookmark the permalink.

9 Responses to The Unmarried Father’s Rights

  1. admin says:

    That would be fine provided the article is properly credited. Thanks.

  2. Supalak says:

    Father wants custody of child lniivg with grandparent?My fiance’s brother wants to gain custody of his daughter who is lniivg with the mother’s mother. The mother signed over her rights to her mother, but the father never signed anything. Does this give the grandmother full rights to the child or is the father able to take custody of his daughter? Currently the grandmother is trying to limit his visitation, is this legal of her? She works at a law firm and is using her job to take advantage of his ignorance to child custody laws.They have not been to court for this or filed for legal custody. The grandmother has filed for child support though and was granted it from both the mother and the father.They live in the state of Maryland.Warenjudew can you supply sources for me to read that say that if the grandmother has claimed child support that it automatically gives her court awarded custody? Even if the father is not absent and sees his daughter regularly.

    • admin says:

      No, No, No, and No. Assuming your facts are accurate, the father still has his constitutional rights as a father. There are certain steps that he has to take to assert those rights, which is where most fathers in these situations fail. I can’t speak intelligently on Maryland law, but I will say that filing for custody in Nevada is a simple process and that is all that is necessary initially to preserve his parental rights. I suspect that there might be more going on though than what you described. Here’s a self help link to the Maryland Family Court if you’re interested: http://www.courts.state.md.us/family/forms/

  3. Tim says:

    My children are in an open investigation

  4. Tiff says:

    A friend of mine broke up w the father of her 5 yr old child 2 yrs ago. He has a problem w alcohol, drugs & prostitute addictions. He would drive w opened cans in the car while her daughters in it… But he never got pulled over so he has no record of any DUI charges. My friend,however, has proof of the prostitution online that he was involved in. He was very inconsistent w the paternal rights he agreed to such as keeping his 2 days w his daughter. Half of the time he has something come up to where he wouldnt be able to see her n his days. She tried to work out a child support agreement w him but always failed to pay which pushed her to legally file for child custody. Since then, there are more incidents that had happened that led my friend to not trust him w their daughter. He carries a gun w no license and he gets abusive when he drinks. She has pics of her bruises when he hurt her, but she was afraid to report him so she just kept all the pics. Now she was told by many people that the court doesn’t care about “he said,she said” scenarios. But isn’t there something she can do? This guys is just trying to get away from paying child support. Btw– he got an attorney and wants 50/50 legal and physical custody over her. He can barely keep his 2 days now he’s asking for more. Also, she was told that if he makes less than her she could end up paying him child support. I feel bad for her because she is a really good mother, and she really tried to keep her family together w him. But she really just want nothing but consistency in her daughters life w her father without alcohol and the sex addictions. Can someone tell me if the court would even look at his character based on all her proof? Oh, he’s only been paying 1 yr of child support and he’s already complaining. He also stole her checkbook and started writing himself checks (fraudulently) his bank closed his account.

  5. admin says:

    The father can file an action to establish paternity and would be entitled to visitation rights if he is the father. Of course he would also be obligated to pay child support. Alternatively, the father can relinquish his parental rights to the mother with the mother’s consent. This would eliminate his legal relationship to the child and his obligation to pay support.

  6. tish says:

    Hey there your website seems like a very good place to recieve legal information.So here is a scenario, mom and dad broke up. dad has a dv on her went to jail for it, did what he was supposed to do. Ever since the breakup she hasn’t allowed him to have any communication with thier daaughter. I have heard that this is illegal to keep a child from the opposite parent, is this true? Also, there is no legal documentation stating that he can have no visitation with his daughter. He is going to file for joint custody, will he still have to pay child support? They are from NV.

    • admin says:

      If your parents are married then they have joint legal and physical custody of their daughter by default under Nevada law. Until someone files an action for divorce/custody to establish a permanent custody order, your father will be in limbo without an enforceable order. That being said, Nevada law also contains a presumption against awarding primary or joint custody to a parent who has been convicted of domestic violence against the other parent. Based on those facts alone, it is likely that the mother will be awarded primary custody and your father will likely have to pay child support. If your father is in the Las Vegas area I’d be happy to meet with him in person to discuss his options.