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When mothers are not married at the time children are born, there are often problems which lead to legal disputes. This article looks at some common questions about the issues of custody and visitation in such cases. It is important to note that judges do not consider custody or visitation as part of the issue of paternity. They are separate legal proceedings. In custody and visitation cases, the judge makes decisions based on the same standards whether the parents are married or not.

Who has custody and visitation rights when a child is born to an unmarried mother?

Usually the mother has sole legal custody, unless the father has "acknowledged" paternity (said he's dad, but see below for a longer description), the child has been adopted, or the court has said something different. That means that mom can make decisions for the child and has the right to physical care of the child. When paternity is acknowledged within a "reasonable" time after birth of a child, both parents have an equal claim to custody, until a court rules otherwise. The father may petition for rights of custody and visitation after paternity is established, but the mother can ask for custody at any time.

How is paternity of a child established?

Paternity can be established when a man "acknowledges" that he is the father. It can also be established by the court or by signing a Paternity Affidavit (which must be signed by both parents). When a court decides who is the father of the child, most of the time it is part of a child support order.

What does it mean to "acknowledge paternity"?

Iowa law does not define all the ways a man "acknowledges" paternity. Basically, the word "acknowledgment" refers to when a man admits that he is the father of the child, and takes some action showing that he is the father. This act could be signing a paternity affidavit, signing the child's birth certificate, or providing support to the child and mother. It could be telling someone that the child is his son or daughter. When paternity is acknowledged within a "reasonable" time after birth of a child, both parents have an equal claim to custody, until a court decides differently. The law does not clearly say what time is considered "reasonable." However, courts have ruled that seven years after birth is not reasonable.

What kinds of custody are there?

There are two basic types of custody. These same standards apply to all parents whether married or not. The first is called joint legal custody. Joint legal custody means both parents have a right to help make decisions about the child. These decisions include education, medical care, legal status, activities, religious instruction and other matters. Iowa law does favor joint legal custody.

The second type of custody is called sole legal custody. A court may think it will be better for the child to have one parent making the decisions about the children. Then the court will award that parent sole custody. When this happens, the court must say that there is clear and convincing evidence that joint custody is unreasonable and not in the best interest of the child.

What if domestic abuse has been involved in the situation?

If there has been a history of domestic abuse, the court cannot automatically award joint custody. The law assumes joint custody is not best in these cases. "History of domestic abuse" can mean any of the following:

• Starting an action under the Domestic Abuse act to obtain a protective order.
• The issuance of a protective order.
• The police have been called to the scene of alleged domestic abuse.
• An arrest or conviction for domestic assault.

The court can award joint custody only if some other factor overcomes the presumption against joint custody in cases where there is a history of domestic abuse. If the presumption is not overcome, sole custody will be awarded.

What does a court consider in awarding sole custody?

A court will consider factors including those listed below in deciding if sole custody should be awarded.

• A parent's immoral behavior that is shown to adversely affect the child. Having a "boyfriend" or "girlfriend" alone may be immoral behavior but it may not adversely affect the children.
• A parent's mental illness if such illness will interfere with the child's health, safety or welfare.
• A parent's substance abuse (alcohol or drugs) or if the parent tends to be violent or abusive.
• Joint custody will not work well.
• In cases where there is a history of domestic abuse in the relationship of the parents.

If there is joint legal custody, how does the court decide whom the child will live with?

Joint legal custody does not necessarily mean the child spends half the time living with mom and half with dad. If joint legal custody is awarded, the court must decide which party has primary physical care. That means who the child is going to live with most of the time. The parent the child lives with is often called the custodial parent. The other parent is often called the noncustodial parent.

The court looks at many factors in deciding who will have primary physical care. It is hard to say which factors are most important to the court. The factors the court looks at are:

1. Characteristics of the child such as the child's age, maturity, mental and physical health.
2. Emotional, social, moral, material and educational needs of the child.
3. Characteristics of each parent including age, stability, mental and physical health, and character.
4. The interest and ability of each parent to provide for the emotional, social, material and educational needs of the child.
5. The relationship between each parent and the child.
6. Relationship between the child and any brothers or sisters of the family.
7. What effect there will be on the child if the court continues or changes current custody arrangement.
8. The home environment that the child will be living in. For example, the court may look at whether one party moves frequently from one home to another, while the other party has lived at the same place for a longer period of time.
9. Where the child wants to live. How much weight the court gives this factor depends on how old and mature the child is.
10. The report and recommendation of either an independent person who investigated both parties concerning who should get primary physical care, or an attorney representing the child's interests.
11. Any other options available for physical care.
12. Whether awarding custody to one parent would separate siblings.
13. Any other important information that was given to the court.

Will the court always give one parent primary physical care?

No, the court can decide that the parents will have joint physical care. A change in the law makes it a bit easier for a court to grant both parents joint physical care. This usually means a child will live with both parents approximately fifty (50) percent of the time.

Either parent can ask for joint physical care. If the court denies the request, the court has to say specifically why joint physical care is not in the best interest of the child. The Iowa Supreme Court has said that several factors have to be considered when deciding about joint physical care:

1. The amount of time that both parents have spent with the children. If the time is about equal, that would make it more likely that joint physical care would be ordered.
2. The ability of parents to communicate and show mutual respect. If one parent shows controlling behavior or there is evidence of domestic abuse, it is less likely that joint physical care would be ordered.
3. The degree of conflict between parents. It will be less likely that joint physical care is awarded if one parent objects or if there is a history of conflict.
4. The ability of parents to agree about approaches to daily matters. If the parents cannot agree about things like discipline and education, it is less likely that joint physical care will be ordered.

Joint physical care may have an impact on child support, public benefits and tax issues.

What if someone calls the police during a custody or visitation dispute?

The police or sheriff's response (law enforcement's response) to a custody dispute is not the same as the court's. Law enforcement usually does not like to get involved in civil (as opposed to criminal) matters. Unlike the judge, law enforcement does not decide who should have custody of a child or when visitation should end. They may enforce orders that already exist, but not make new ones. Because of that, law enforcement will not usually get involved in custody or visitation disputes between parents unless there is a court order to enforce or the safety of the child is at risk. This is true whether parents are married or unmarried. Law enforcement may not be interested in getting into the details of whether paternity has been "acknowledged" or not. They may simply ask if both the people involved are parents. Once it is clear that the dispute is between two parents, law enforcement most often handles married and unmarried parents the same: if there is no court order, they will not help.

How is a custody decision made by the court?

The first matter the court must look at when custody of children is involved is whether or not the court has "jurisdiction." Jurisdiction means the court has the authority to hear the case and decide which party should have custody of the children. This is only an issue if the child or the child's parents have lived in a state other than Iowa in the past. Jurisdiction can be very complicated. The court would consider many things including whether another state has already entered a custody order, where the child has lived for the last six months (called the child's home state) and whether there is any emergency reason that Iowa should decide custody now.

What if one parent refuses to allow visitation to the other parent and there is no court order about visitation?

If there is no court order, then the custodial parent can make decisions based on what is in the child's best interest. The custodial parent is responsible for the well-being of the child. If the custodial parent believes that the child will be in danger of abuse or neglect during visitation, alternatives may need to be considered. Other options could be setting up visits at the custodial parent's home, or the home of a responsible third party.

However, refusing to allow reasonable visitation can cause problems. In both married and unmarried custody cases, a court can look at one parent's refusal to allow visitation in deciding who should get custody. Usually, the court prefers that the parent having primary care not interfere with the child's relationship with the other parent. It does not matter whether or not a judge has ruled on the issue of paternity. If a parent refuses visitation, the court can consider the reasons the parent denied visitation. The denial could be due to fear for the safety of either the parent or child. The court can decide to award custody to the other parent if the reason for refusing or restricting visitation is unreasonable.

A parent should not refuse visitation because the non-custodial parent has not paid child support. There are many ways to try to collect support from a parent who does not pay support. However, refusing visitation isn't one of them. For help in collecting support, contact the Child Support Recovery Unit. If problems continue, contact Iowa Legal Aid or a private attorney.

What if one parent has concerns about what might happen while the other parent has visitation and there is a court order setting up visitation?

If there is a court order setting up visitation, the court order must be obeyed or the person violating the order could be found to be in contempt of the order. If found in contempt, the person could be ordered to pay money or be put in jail. Only a judge can change a visitation order. The proper way to challenge a court order is to ask the court to change the order.

CONCLUSION

It is important to keep in mind that each case is unique. The court may rely on some factors more heavily in one case and rely on other factors more heavily in another case in deciding where the child or children should live.