Settling on child custody is a stressful and difficult situation when a breakup occurs. This is especially true when child custody matters involve unmarried parents. Many of the legal challenges unmarried parents face in a custody battle are the same as married parents. Fortunately, NC child custody laws are in place to determine child custody in these situations. A major consideration in child custody cases is based on whether you are the child’s mother or father.
Mother’s Custody Rights
Under NC child custody laws, the unmarried mother is considered to have the primary or natural right to custody of a child born when she is not married and if the father is not on the birth certificate. This means the mother has the legal right to custody, control, and care of the child. The mother’s rights are greater than those of the father or any other person in these circumstances. These rights can change under NC child custody laws, if the mother is proven unfit or has abandoned the child.
Father’s Custody Rights
An unmarried father who isn’t on the birth certificate won’t obtain primary physical custody over a mother who is a good parent (without a court order), but may be able to establish rights regarding custody or visitation. Under NC child custody laws, unmarried fathers who want to secure custody of a child must take legal action. By establishing paternity, the father’s name can be added to the birth certificate and be would, therefore, be notified of proceedings affecting custody. The father’s name on the child’s birth certificate will give him automatic recognition as the legal father and an equal amount of standing in court as the mother. A father’s rights to custody depend on his suitability as determined by the family court.
A family court using NC child custody laws will grant three types of custody:
-
Sole custody – Sole custody can be either physical or legal. Sole physical custody places the child to reside with one parent and is under their supervision. Sole legal custody grants one parent the responsibility and right to make decisions regarding a child’s education, health, and welfare.
-
Joint custody – Joint physical custody grants both parents significant, but not necessarily equal, time with the child. Joint legal custody gives both parents the right and the responsibility to make decisions about the education, health, and welfare of the child. One or both parents’ request for joint custody will be considered under NC child custody laws.
-
Third party custody – Under NC child custody laws, a third party who has no relationship with a child, does not have standing to seek custody. If the third party has a relationship with the child, they may be able to secure custody. Examples of this relationship include extended family, godparents, siblings, and neighbors. The court will consider the length of time the party has known the child, if the parent consents to the third party having custody, and whether the parent has maintained their parental responsibilities for the child.
The Real Deal in NC Child Custody Laws
Under NC child custody laws, a court will make child custody determinations based on the best interest of the child. The best interest refers to those who will best care for and meet the needs of the child. Circumstances surrounding the child’s well-being and welfare are also considered in a court’s “best interest” determination.
Child custody is a complex issue that requires the help of an experienced child custody attorney. At Emblem Legal, we are knowledgeable about all aspects of family law, including child custody issues. Contact us today for a consultation. Let us help you defend your rights, and protect your children. Call us at 704-248-7683, or fill out the contact form on our website.
You can read more about the importance of establishing custody here.
Can an unmarried parent have a new partner in NC or can visitation by the other parent be withheld
That’s a complicated question. It depends on how long everyone has been separated, who the new partner is, and if they are safe to be around the child. However, without a court order either parent can do whatever they like. That’s the issue with having no set custody terms. Reach out to us for a consult if you want to discuss your own individual situation. We’d be glad to talk to you.
I’m an unmarried father. My baby’s mother lives with me, in my mother’s house and she is abusive to me sometimes. it she never leaves bruises on me but it’s also emotional abuse also. How can I use this against her in court?
Shane,
I’m sorry to hear about the abuse you are going through. First of all, you should get help for domestic violence. I don’t know what part of NC you are in, but here is a statewide site with information and numbers you can call. https://nccadv.org/
As to how it could be used in court, that’s a large question with a variety of answers. First and foremost you need to get to a safe location where you are no longer in danger. Then set up a consult with a law firm, like us, who can help walk you through your custody case.
Me and my baby’s father have recently split up. The baby is due in 5 weeks. He told me he will go to court for full custody if I don’t let him see our son EVERY day. I’m sure no judge would award custody for just that reason. Is it best to have his name on the birth certificate or not when it comes time to go for custody?
Dont let him sign the birth certificate or affidavit of parentage, every state is different, but he sounds controlling, i have a 8 month old n im 6 months prego im not with the dad bc he took my daughter in april for 9 days an bc i could not afford an atterny it was hard for me to find her, check out your hospitals visitation/visitor rules, it will get worse if you stay with someone thats like that..
Is My child’s father allowed to just take his son away from me even if his name is on the birth certificate but there is no custody agreement
if he’s on the birth certificate you both have equal rights and the police won’t interfere without a court order. You need to file for custody ASAP before this becomes the status quo. Contact our office and we’d be happy to setup a consult to discuss how we can help.
My daughter in law has a child from a previous relationship. She was not married to this man. He was abusive to her and the day she left she intended on taking her child but he did not allow her to. Due to nowhere to go she and my son moved away from NC and live with us in Missouri. The child is still in NC. She tried to work out an agreement with the father to see her. He would let her talk tonthe child but just stop responding to calls and texts. She continues to try. She is a good woman and both her and my son have stable good jobs here in Missouri. She wants her daughter back. She never wanted to leave her but was afraid and he wouldn’t let her take her. He has abused her..my daugher in law.. But hasn’t hurt the child so she had to go out of fear for her life. She needs help. Can she file for custody although the baby is in his home? Does she file here or NC? The father will be looking at prision time but we’re not sure when. He ran over his aunt purposely trying to kill her. This could be months or years before he goes away. She doesn’t want to wait for this to happen. Please any help is appreciated.
I’m really sorry to hear about this situation with your daughter in law. She absolutely needs to file for custody ASAP. The longer she remains without the child the worse her chances will be of being able to move. The case must be filed in North Carolina as jurisdiction for child custody follows where the child has resided for the last 6 months. Please have her contact our office for a consultation if she would like help through this process.
The father of my child lives in Mecklenburg County NC. He is not listed on the birth certificate, however I did create a document that was Notarized and signed by both parties on the date which Brooklyn left and the day she was to return. The dates were October 27,2017 to November 25, 2017.
However during the time of when she was supposed to be picked up by me, the father moved and would not provide me with the information to pick up Brooklyn. I was trying to get a lawyer as soon as this happened however I could not afford an attorney and a private investigator to locate the father.
On June 3, 2018 he filled for emergency custody which was denied and I received the paperwork In July of 2018, I then had the address finally after months of asking and not receiving the information from the father.I reached out to the father and told him I would be coming to pick Brooklyn up the first week of August in 2018 he replied “come on”.
However when I got there he denied me from picking up my daughter I called the cops however they could not do anything and I had to leave NC without Brooklyn.
There is now a Custody hearing sometime this summer of 2019. Brooklyn will be almost three when I’m able to see her again.
I live in Kentucky and just wanted to know how likely would I be able to get temporary custody during the hearing and if they would grant me custody and the return of Brooklyn since it has been so long due to circumstances out of my control. October of 2017 to present 2019
Also would it be Necessary for me bringing information on my ten year old daughter who has been in my custody since birth and has been student of the month every year and has been on honor roll. To establish that i am a good parent.
Shantel you absolutely need representation for this hearing ASAP. You have a complicated case and since it’s been a year since he took your child you will have to explain to the judge why you waited so long to do something about it. An attorney is very necessary for your case. Contact our office and we’d be happy to setup a consult to discuss how we can help.
My sons father and I were never married but his name is on the BC, according to the above I, the mother, automatically get custody of my son? If his father wanted to, he could take me to court to fight for custody? He still see’s his dad, spends weekends with him…..I have the final so say in everything until he files for custody?
That’s not quite how it works. Because he is on the birth certificate you both have equal rights. Which means if he decided to just not return her one weekend, you couldn’t do anything about it without a court order. I suggest you get a court order ASAP to help protect yourself.
I haven’t been able to meet my daughter she will be 2 this year and I’m not on the birth certificate. Her mother lives in WV and I want to be a father to my child if anyone has clue on how I could Go about doing this please comment. Thank you for your time.
You would need an attorney in the state where your daughter resides. I suggest contacting one there.
Good morning;
my daughter’s father and I were not married when she was born but he signed her birth certificate. We have not seen him since the year she was turning 2 years old. She will be 9 in Aug. I want to be able to get her a passport so we can travel but since he signed her birth certificate then I have to get his signature. Do I need to file a custody order to get this done?
Jan, you likely need to terminate his parental rights to do what you are requesting. This is a very complicated process as in NC being a parent is a constitutional right. We’d be happy to represent you through this process.
My daughter was married and lived in VA and has a 2 year old son with her then husband. They separated 10 months ago and she is in the process of filing for a divorce. He agreed to give her full sole custody of him as long as he didnt have to pay child support. So he is not ordered to pay child support but has visitation rights. She moved to NC 8 months ago and its ordered to meet half way every other weekend for visitation. He does not use his visitation rights and actually has only seen him 3 times in 10 months when she returns to VA to visit family. Recently he hasn’t called or tried to contact her in any way for 4 weeks and hasn’t seen him in 3 months. She is now with someone new and is pregnant with her boyfriends baby he also loves and takes care of her son. Would it be possible for her to file for abandonment? And what state would she have to file in VA where the father lives or NC where her and my grandson live? Or can she file to take away his parental rights in NC? Also found out he is a drug user and he is a convicted felon as well. He has sent her several text messages that he doesnt want anything to do with him anymore then one day he says he does. But his actions of no contact in the last months obviously shows he doesnt want anything to do with him anymore. What can she do? Thanks for any advice.
It sounds like this court order was entered in Virginia and therefore she would need a VA attorney to help her with this. If, however, it was a North Carolina order we’d be happy to speak with her about all of these issues. There are far to many here to be able to give you a clear answer on our comments section.
My daughter is 34 and having a child but the father and her are not married and he is not very happy about the situation since he had another child already. She will seek some help for child care and insurance but how do you go about getting child support even if it’s not much from the parent. Do you have to go to an attorney and pay for a court order? Thank you for any help
You can file for child custody and child support on your own, but it is a complicated process. Most court houses have some general information and packets to fill out if your daughter wants to file on her own. However, if she wants to hire a lawyer we’d be happy to speak with her.
My son’s dad and I have never been married and he is not letting me see my son since his birthday of July 14, 2019. My son lives with me so how can I go about getting my son back.
Take him. As long as there is no court order you have the rights to take him or call for a police escort to get him back.
This isn’t correct. The police will absolutely not intervene in a custody dispute between the parents without a crystal clear court order specifically ordering them to aid in the recovery of the child (which only occurs in emergency custody cases).
No, your information is not correct. There is no legal custody “dispute” between a man and woman who are still married and have a child together. In this case if there is no custody order and the parents are still married, the father has as much right to the child and legal standing in court as the mother does. Therefore it would be perfectly legal for the father to come take his child if he chooses to do so and if the mother refuses, he could have the police get involved and force her to allow him to take the child back. That’s why it’s so important for the parent who is caring for the child to immediately obtain a custody court order clearly outlining the custody and visitation stipulations ordered by the court. This is how the law works in NC and I have personally been witness to this exact scenario actually happening in real life in North Carolina. The police absolutely did force the mother to let the father take the child back with him as she had no legal standing to prevent him from doing so.
* Please delete or disregard my previous comment as I am not an attorney. On second thought, just because I witnessed this happen it doesn’t mean that the police were following the law when they forced the mother to hand over their child. They could have done this illegally for all I know as I am not an attorney.
Hi Crystal, unfortunately you need to get a court order to get your son back. Without a court order the police won’t get involved, and since you two have equal rights, there’s nothing stopping him from keeping your child. The longer this goes on, the worse your case will be when you do eventually go to court. Time is of the essence, so we suggest taking action immediately. Our office would be happy to setup a consult to discuss how we can help you do that.
Hello! I have an issue with the biological father giving me issues about clothing for our children. He is not on the birth certificate and we are not married. He does not have a relationship with the children, is not on child support, and does not support the children in any way. Am I obligated to provide the sizes of my children’s clothing for him?
My daughter, who is legally married but has been separated for several years had a child with another man. They both lied and said they were married so he could sign the birth certificate. How can she have his signing of the birth verticals nullified?
Disregard the below comment. The actual fact was that the lie was that she wasn’t married so the father could sign the birth certificate. Can his signature be nullified.
I am not married to the father of my 10 yo son. He is on the birth certificate. We have no legal custody order at this, but I was served with custody papers today. No official order in place. Can I go to the school and pick him up ? Am I presumed legal custodial parent until the court decides? Can I get a temp order to have legal custody until the hearing?
Hi,
I’m an unmarried father of an 8 year old boy with a unique situation. When my son’s mother was pregnant and conceived she was still married. We went through the necessary procedure to get me on the birth certificate and establish paternity. We have lived together for about 7 years trying to make it work for my son. She has a teenage son and I have a teenage daughter living in the house as well. We both have 1 daughter each who have their own houses. I’m at my wits end and dont know what to do. Legal custody hasn’t been established and I’ve paid every bill in my house, car payments, insurance, etc. I spend unreal amounts on my son for sports year round. We have something everyday of the week. She works a job that doesnt pay a lot and even with my child support I k how they would struggle and her son is about to go to college and I even pay for all of his debts well they are in my name anyway car payment insurance etc. I’m thinking about me moving out and getting a place and they can continue to stay here to not be so disruptive. I know that a court wouldn’t recognize all of that as child support but that’s house payment, utilities, I may have to liquidate her vehicle because of the price. She could get something less expensive. Would this effect my ownership of the house in anyway? She has never made a payment or contributed to the bills,
Could we sign an agreement to make something like this happen? Thanks for any help!
Bit over 2 years ago my children’s father and I separated and he lawyered up and got sole decision making responsibility for the children. He has since made it difficult to visit as he has the kids either at his house his parents or his sister’s. I’ve been trying to do what I can to work with everyone’s schedule. He also moved the kids from their private school into a public school a good distance from where I reside making it even harder to get with them and didn’t inform me he was doing that. I have also asked if my husband and I (recently got married) could visit on his terms the children’s birthday partys. He does not like my husband bc when we seperated that’s who I ended up with. He filed me as abandonment. I was a stay home mom for 5 almost 6 years was only 25 and he didnt not allow me to take the babies with me. I’m now trying to get custody of the babies. Can he try and fight me and bring up past issues with my husband and I? I hit rough batch but now and he is aware of it but now I’m doing good stable and involved in church. I just want to be prepared for anything as we have court October 22nd
My boyfriend is the father of my first child his name is on the birth certificate. I’m about to have our second child. He has threatened that he wants to be out of this relationship and as soon as our 2nd child is born that I need to find a place on my own by December because he’s going to tell the landlord that he will not be living here anymore, and I am a stay-at-home mom so I have no job nor a income to even afford this place, nor do I know how can I afford a place on my own with a newborn and no job. He plans on getting his own place with enough room for our two kids and says how I’m on my own. Can he do all this? And what can I do?
Hello please help !!
My daughter moved to NC from NJ to be with her boyfriend . 4 years later and 2 beautiful girl he has decided he no longer wants to be together. He is very mean to my daughter and the mental abuse MUST stop. Can she move back to NJ where our family cam help. She has no family in NC and as long as she will have to support herself along with the kids , can she come home to NJ ??
My sister and her ex boyfriend have 2 kids together. Of course they arent together anymore. The kids are with their father, my sister is trying to get a place of her own so her kids can move in with her. The father refuses and says she has to tke him to court to get the kids from him. But hes not on the birth certificate but somehow got the kids under his medicaid and snaps. And also in the process of filing child support. My sister been trying to get ahold of him to get the kids but he refuses and blocks her from everything and moved to a diff area with the kids. She doesnt where. She wants to do joint custody cause she dsnt have anybody to watch them while shes at work but he wants full custody and collect money from her. Can she go over when she finds out where they live to grab the kids? And does he have right to the kids ? And is it possible for him to put the kids under his medical insurance or anything under him when hes not on the birth certificate or my sister signing over her rights to him? Please help!
Ex has had joint legal since we separated. He tied to get my child taken from me. Kept my child after a visit and would not give her back O told the police his name wasn’t on the birth certificate but they said is he the father I said yes because I don’t lie. I had to get a lawyer and fight to get her back she was only 3. He ended up with joint legal and visitation every other weekend. At his parents house. To this day she is know 17 he still does not have his name on her birth certificate. One more year and I will be free of the abuse. I even proved he was abusive and had a drug issue all they did was tell him not to call me names and to take drugs test. Never complied with either. .
I’m a dad with two kids and my name IS in the birth certificates. The kids live with me and I pay for everything but I travel 2-4days a week for work so their mom comes and stays at my house with the kids while i’m gone.
She is now pregnant with her new bf who lives in FL and now i’m worried she may want to move there and take the kids out of state with her. Do I have any chance of keeping the kids here?
Neither parent is negligible or a bad parent but i’m definitely the one active with the children, I’m working to create a stable life with roots in our community and don’t want them to be uprooted, do I have a chance of keeping them in NC with me?
In North Carolina is it legal to place a child in foster care without notifying the legally established father? I ask this as I recently found out my son established by paternity was placed in foster care in July in NC. The mother has actively prevented me from establishing a relationship prior to this event but I have paid child support (and was current) and can document that I had tried to meet and have a relationship with him. Me amd the mother have sporadic communication because of lack of response on her part. He was placed in foster care in July of this year and I only found out because child support in MD (where order is and child was born) returned my support check and terminated the order to withhold. I immediately investigated and was able to obtain a copy of the order to put him in foster care that stated there was not time to notify the father I assume for his safety before removal. I get that and appreciate it. That said for him to be in custody for over 3 months and me to only find out this way is ridiculous. I still have yet to get details of why he was placed.
I am a professional who raised another son in a successful co-parenting arrangement with my ex wife (not mom of this child). I have no criminal record of any kind. There would be no reason why I would not be notified (i.e domestic violence, child abuse etc).