The Unmarried Father’s Rights

Written by MillsLawGroup on . Posted in Family Law

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.



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State Bar Of Nevada 1928
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