Unmarried or Unwed parents have no less rights to legal and physical custody of the child than do married parents.
By Attorney Alyssa Knisely, 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 withold 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 witholding custody of the child from the other, the parent seeking to enforce their rights needs to file for custody.