Is marital status important in seeking child custody and visitation?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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More jurisdictions have become more accepting of unwed parents. Virtually every state has passed laws which allow either unwed parent of a child to petition a court for child custody or visitation orders. Even though unwed status used to be viewed negatively, the bias associated with having a child out of wedlock has significantly reduced over the years. Marital status, however, can impact how you file and resolve custody issues.

The Bests Interests of the Child
The main issue the court will address in any child custody suit is what is in the best interests of the child. Even if the court is not particularly happy with a child born outside of marriage, the judge’s focus will still be on the future of the child. Your focus should be on developing a parenting plan to help you demonstrate why giving you custody is in your child’s best interest.

How Marriage Affects Child Custody
A marriage can have an indirect effect on child custody. First, it affects how you file for custody. If you are married to the other parent of your child, you will have to file for custody through a divorce proceeding. If you are unmarried, you should seek a paternity suit or suit affecting parent-child relationship. Second, dissolution of the marriage can impact support obligations. For example, the non-custodial parent is usually ordered to pay child support. In a paternity suit, the only issue is how much that amount will be each month. In a divorce suit, however, couples will sometimes negotiate property division as part of a support obligation. For example, your spouse agrees to make your car payment as child support instead of sending a payment each month. This may seem like a minor issue. However, if your ex-spouse files for bankruptcy, he/she may argue that the car payment obligation is a consumer debt. If your divorce decree clearly outlined that the payment was actually a child support obligation, you can successfully thwart him/her from having their liability discharged in bankruptcy.

Spouse Is Not the Biological Father
The last main impact of a marriage on child custody is when a child is born during a marriage, but the father of the child is not the spouse. Most states will presume that a child born during the marriage is a product of the marriage— thereby “presuming” that your spouse is “dad.” If a final decree is entered in a divorce proceeding formally adjudicating the husband as “dad,” the order could preclude a biological dad from pursuing their parental rights.

Child custody laws vary state by state. If your child custody dispute involves an overlap of issues as discussed above, you should contact a family law attorney in your area to walk you through the best way to file for child custody in your situation. 

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