Children Born Out Of Wedlock

The instant a child is born both biological parents have a right to establish a parent-child relationship with their child. The constitutionally protected right of a parent to the custody of his or her child is not weakened by the fact that the child was born out-of-wedlock.

Neither parent has a preference to custody of a child born out-of-wedlock. Both parents have equal standing to obtain custody, notwithstanding the lack of legitimation of the child. Moreover, both parents have equal custody rights when the biological father has acknowledged paternity and assumed parental responsibilities.

How Is Custody Decided?

In determining custody, the primary considerations are the best interests and welfare of the child. Custody disputes between unmarried parents should be resolved by reference to the same statutory factors considered in determining the best interests of children whose parents have been married to each other. In determining the best interest of the child, the court considers several factors, such as the conduct of a parent in meeting the responsibility of establishing a significant relationship with the child and of providing for the child.

Some of the more important factors that a Court may consider are as follows:

  • Primary caretaker. Where both parents seek custody of a child too young to express a preference for a particular parent and one parent has been the primary caretaker, custody should be awarded to the primary caretaker in the absence of a showing that such parent is unfit. However, the primary caretaker rule is not extended to a non-biological father where the biological mother is a fit person and the non-biological father has not married her.
  • Primary residential custody: The determination of primary residential custody is governed by the best interest of the child, and the natural father need not prove that the mother is unfit in order to be awarded custody.
  • Joint and divided custody: Where the best interests of the child so warrant, joint or divided custody may be awarded. On the other hand, joint custody may not be awarded where it is not in the best interests of the child, as where antagonism or sharp differences exist between the parties. A domestic violence conviction creates a presumption that joint custody would not be in a child's best interest.
  • Doctrine of family unity: Absent compelling reasons to the contrary, siblings should be raised together whenever possible, even when there is an unborn half sibling.
  • Removal of child from state: When the custodial parent of a child born out-of-wedlock seeks to remove the child from the state, he or she must obtain the consent of the non-custodial parent or, when consent is not granted, a court order obtained under the "best interests of child" standard.
  • Same Treatment: An unwed parent, whether mother or father, should be treated the same as any other parent for purposes of determining custody.

Find Out Your Rights As An Unmarried Parent

For help with child custody or visitation rights if you are not married to the other parent of your newborn child, contact the Pennsylvania child custody lawyers at Shaffer & Engle Law Offices, LLC. Call 717-827-4074.