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How to File for Visitation as an Unmarried Father

"Help! My Ex-girlfriend won't let me see my son."


Father and baby daughter playing outdoors
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Question: I'm a new father, but my ex-girlfriend wants nothing to do with me and won't even let me see my son. How do I get a visitation order through the courts? I'm not the kind of guy who can just walk away, but I don't know what to do. It sounds like fathers' rights are very limited in the real world, especially for unmarried dads like me.

Answer: First, I think it's great that you're not walking away. You and your son have a right to know one another and establish a loving, life-long relationship. However, the fact that you and your ex-girlfriend never married means that right now, she has the upper hand, legally. While some states require unmarried moms to actually file for custody, most states presume that an unmarried mother has primary custody whether she files for custody in court or not.

So what does this mean for you? My advice is to be realistic about your expectations. Unless the mother is truly unfit to care for your son, it's unlikely that you'll be awarded primary physical custody. But its entirely reasonable for you to have a regular, ongoing visitation schedule. Since you've indicated that your ex-girlfriend refuses to allow you to spend time with your son at this point, you'll need to pursue visitation through the proper legal channels:

  1. Establish Paternity The first thing you'll need to do is establish paternity. If your name is on the birth certificate, that may be sufficient proof of paternity for the state. If not, you'll want to request paternity testing to verify your biological relationship with your son. You can do this by contacting your local family court or Child Support Agency.

  2. Pay Child Support Whether you go through the courts or the Office of Child Support Enforcement (OCSE), the state will expect you to begin to make child support payments on behalf of your child, even before they address the issue of visitation. You should also be prepared for the state to demand retroactive payments, as well, which could cause your payments to be higher, at least initially. In most states, the amount of child support you'll pay is based on your income, known as the "Percentage Model." However, in some states, the amount is based on both parents' income, which is know as the "Shared Income Model." For more on what to expect, read about Child Support Calculation methods.

  3. File for Visitation Once your biological relationship is established, you can begin to exercise your parental rights -- which include the right to regular visitation. In most states, you will need to file for visitation with the family court's child custody division. To learn more about this process, visit Child Custody Laws in the U.S. and become familiar with your state's legal code. Once you're ready to actually file the motion, you may want to meet with a lawyer, at least for an initial consultation. If you decide to proceed on your own, talk with the court clerk about filing "pro se," which means representing yourself.

  4. Mediation Depending on where you live, the state may require you and your ex-girlfriend to attend mediation sessions through the court, in an attempt to reach a mutual agreement about visitation and custody. This can be extremely helpful in establishing a new, collaborative relationship that's focused on your child's needs.

  5. Parenting Plan Some states also require co-parents to file a parenting plan with the state. This document would include the details of your visitation schedule, as well as the arrangements you both agree to regarding holidays, overnights, school vs. summer schedules, and more.

Remember, too, that your initial visitation plan is something that will likely change over time as your son grows older. Right now, because he is so young, frequent, short visits that take place around his existing nap schedule will give you both the best opportunity to bond and establish a relationship with one another. As he gets older, those visits may become less frequent but longer. Keeping your long-range goals in mind as you go through this process can help you stay calm and focused, even when you face opposition and delays.

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