Child Custody Laws for Unmarried Parents

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Separation and divorce cases can be very complicated. When the parties going through a divorce have children together, a court may help resolve disputes over who should be the main caregiver, visitation rights, and child support. The situation can be further complicated if the parents were never married.

According to statistics, one out of every four parents living with a child today are not married. Child custody laws for unmarried parents can be quite difficult to navigate. Read on to better understand more about this topic.

Who Should Get the Custody of the Child if the Parents Are Not Married?

The court will resolve disputes in child custody cases and establish paternity in cases where the parties are unmarried. When an unmarried mother gives birth to a child and does not include the father on the birth certificate, she effectively has sole custody of the child absent a court order stating otherwise.

For the father to establish his paternity and rights to visitation, he must petition the court. If a mother lists the biological father on a child’s birth certificate, this creates a legal presumption that he is the child’s father; however, this presumption can be challenged in court. In that circumstance or where the father is not listed on the birth certificate, a court order is necessary to establish paternity.

The father would not have any rights to make decisions for the child or have visitation unless the court grants him these rights.

How Paternity Is Established

If the parents in question happened to be unmarried at the time of birth, they will have the opportunity to complete a Paternity Acknowledgement Affidavit. The affidavit is one of the ways to create a legal linkage between a biological father and a child.

On the other hand, when it comes to married parents, paternity is usually assumed at birth, unless otherwise stated. Paternity for parents who are not married is typically established using a paternity acknowledgement which can either be done at the hospital or at DHEC Vital Records once you leave the hospital.

Alternatively, if the biological parentage of a child is still in question, DSS can handle DNA testing to establish paternity, and they can also assist in having paternity established through the court. The testing is free.

The Court Process of Filing for Child Custody for Unmarried Parents

After filling a petition for child custody, the judge will schedule a hearing date. Both parents, or their attorneys, will be allowed to argue their case before the court makes a ruling. Legal representatives will review all the evidence and help the court determine who the right parent to be awarded primary custody is.

When making this ruling, the court will focus on the child’s welfare and ensure that the custodial parent has the means and capacity to take care of the child.

Now You Know the Process and Child Custody Laws for Unmarried Parents

Unmarried parents laws apply differently than for married parents. However, child custody laws for unmarried parents are similar to those of married parents.

If you have a child custody issue with your unmarried co-parent, ensure you contact us today at Bannister, Wyatt & Stalvey, LLC to schedule a consultation appointment with one of our attorneys.


Who decides the last name of the child?

If a child is born to unmarried parents, the mother will be responsible for choosing the child’s last name.

Is it necessary to consult a family law attorney?

Unmarried parents’ separation cases can be quite complex. It would be wise to consult an attorney, especially one with experience in child custody cases.

Why is it important to establish paternity?

Establishment of paternity is essential for a Father to obtain rights to his child and also to establish his obligations.

Why Choose Bannister, Wyatt & Stalvey Law Firm?

With the experience to address complex family law, criminal defense, and real estate matters, our knowledgeable team of attorneys are here to advocate for you. We operate our law offices on three main principles:


We strive to establish personal trust with each and every client.


We operate with the utmost integrity when dealing with clients and the legal community.


We commit to excellence in all aspects of the legal profession.
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