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Child Custody and Unwed Parents

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Unmarried or Unwed parents have no less rights to legal and physical custody of the child than do married parents.

By Attorney Jeffrey B. Engle, Child Custody Lawyer, Harrisburg, PA

I often receive many inquiries from clients as to which parent possesses the 'most rights' to a child.  I also receive a like number of inquiries from unwed parents as to whether they have the same kind of rights that married couples maintain.

Who has the most rights to a child- the mother, right?

There no longer exists a presumption in the law of PA that the mother is the best parent to raise a child.  Rather, both mother and father are to be viewed on equal footing before the court.  There are real world exceptions to this general presumption, however, where the child is an infant and the mother is breast feeding.  Many courts are loath to tear the infant child away from the mother for significant periods of time while the baby is nursing.  This only makes sense. 

Instead, in all cases, the court is to consider a list of 'custody factors' in order to assess which parent should have primary, shared or partial physical custody.  I have had many cases where that determination has come down on the side of the father.

Do Unmarried Parents have any less rights?

No.  Absolutely not.  Natural parents, whether married and separated or never having been married at all share exactly the same rights to custody that an intact couple does.  Both natural parents have legal and physical custodial rights.  That is, both can exercise discretion into how the child is to be raised and cared for (legal custody) and have the right to maintain periods of time with the child, whether during days or overnights (physical custody).  The status of the parents' relationship bears no relevance to their respective rights to child custody.

But, at the child's birth, the mother has 'natural custody,' right?

No.  There is no such thing as 'natural custody' rights of the mother.  Rather, both the mother and father of the child, where paternity is not an issue, share equally in the rights to make decisions about the health, safety and welfare of the child.  The way in which either parent enforces their rights to custody is through the establishment of a custody order.  The party seeking to enforce their rights, will have to file a Custody Complaint with the Court of Common Pleas where the child resides.

Many times, the child will go home with the mother.  Do not confuse this with a 'natural right' of the mother.  This may simply be the hospital's policy.  Mothers do not outstrip fathers.

Can the mother with-hold the child from the father?

Yes.  If there is no custody order, either parent may do this.  However, it is never advisable to keep the child from one of the parents.  As indicated, both parents share custody rights and can enforce them through the court.  If either parent is with-holding custody of the child from the other, the parent seeking to enforce their rights needs to file for custody.

If you have questions about your rights as an unwed parent, contact the experienced child custody lawyers at Shaffer & Engle Law Offices, LLC toll free or email us today.


What if the father lives in Hawaii on a lava rock (not kidding) and has no steady means of support except giving illegal tours of the volcano? The father acknowledges paternity but does not provide monthly support but only a $2,500 check at Christmas. He comes to the area several times a year and demands equal say in the child's (4th old) development. He threatens to take full custody if we (mother and grandmother) don't comply. Also the man is 65 years and on social security. The child receives a small monthly SS check of $375 because the father worked most of his life for a non profit organization. What are his rights?

Hi folks my girlfriend trying to leave me and take my kids to another state. She is not working and I do everything including rent . Right now she has one of my kids with her friend and went looking for place out of state. All she's trying to do is move with them to where she can get more public benefits and do little or no work . She often quit jobs. But I work full time and go part time school just to support her and the kids. I have always kept my job and support them. We spent about three and half years together and she has never kep any job. She doesnt know how to train up a child shes temperament and lHow Can I prevent her from taking my away, I really love my kids .

Slabe- My apologies for not responding sooner. If a parent desires to relocate with one or more children, they must first notify the other parent of their intent to relocate 60 days prior to the relocation. That notice must be in writing and served upon the other parent via certified mail. Further, a counter-affidavit must be provided to the other parent that would allow them to state whether they oppose the move and request a hearing prior to the other parent moving with the child(ren).

I would recommend you seek counsel as soon as possible. Custody counsel may wish to file for emergency relief in order to block the move. The court could issue an injunction that would prohibit the parent from relocating with the child until such time as a hearing on the relocation could be held.

Alyssa Knisely

Hello, I was wondering if my child was born in PA but then we all moved to a neighboring state and he moved back to PA and my child and I stayed in the other state. We were never married but he is on the birth cert. My child and I have been in the other state for 5 years. Where would jurisdiction be? Also if I was looking into getting married and moving to my husbands more state away, would I have to notify the father even if we never went to court for custody?
Thank you

I'm confused by your question, however, I will reply based upon the following facts I think are present:
1) You don't live in PA, but a neighboring state;
2) The father of the child lives in PA;
3) There is no custody order in place in your state or in PA; and
4) You want to now relocate to yet another state with your current husband.

First, jurisdiction would be in the state where the child has lived the past 6 months. This assumes, however, that the child was removed with the advice and consent (acquiescence) of father. Father is still the natural "father" as he would be estopped from denying paternity because he becomes the presumptive father, if not contested, 60 days after he's placed on the birth certificate. Conversely, you would be estopped from now denying that he's the father. You would need to file for custody in your state. Like many states, including PA, there are mandatory notification requirements that you must provide in order to relocate. You may relocate with either the consent of the father (written on an affidavit supplied by the court) or with a court order. You should check with counsel in your state as to what those relocation provisions, if any, are in the custody statute in your state.

Hope this was helpful.


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