When a child is born to married parents, each parent has an equal right to the custody of the child. If the parents later separate and/or divorce, then they would have to go to court in their divorce action in order to obtain custody and visitation orders. The situation is much different, however, when a child is born and his or her parents are not married. Essentially, in this situation, the mother has sole legal rights to the child, and the father has no rights, unless and until he both establishes paternity and obtains a court order for custody and/or visitation.
Legal Rights to a Child at Birth
When a child is born out of wedlock, South Carolina Code of Laws, Section 63-17-20(B) provides that the natural mother of the child has sole custody of the child, unless she has taken other steps to relinquish her rights to the child. If, however, paternity has been acknowledged or adjudicated, then the father can petition the court for custody or visitation rights.
There are a variety of ways that a father can legally establish paternity for his child. A child’s mother or father, the child himself or herself, or the Department of Social Services (DSS) all can file an action to declare or establish paternity in court under South Carolina law. As the purported father, you have the right to admit or acknowledge paternity, contest paternity by requesting a genetic test to determine paternity, or do nothing. If you do nothing, however, the court is likely to hold you in default and legally establish you as the father of the child. If you admit paternity or DNA testing results in a positive test, then the court will legally establish you as the child’s father.
Another way to determine paternity arises when you receive an administrative notice of financial responsibility from the Child Support Enforcement Division of the State Department of Social Services. At that point, you will have the opportunity to contest or admit paternity, as well as legally establish yourself as the child’s father.
Custody and Visitation Rights for Unmarried Fathers
Once you have legally established paternity, you are entitled to file a separate action for custody and visitation rights. However, unless you go to court, you have no rights to even visit your child, even if you already have established paternity. The fact that you have established paternity, in and of itself, does not change the fact that the mother has sole custody of the child. Rather, if the mother will not allow you to see the child, you will have to file sole custody which seeks legal visitation rights with your child.
Get Advice From an Experienced South Carolina Paternity Attorney
The attorneys of the Elliott Frazier Law Firm, LLC have handled countless paternity cases, as well as actions involving custody and visitation rights for unmarried parents. We know how to best situate our clients to establish the necessary legal rights to their children. By working together as a team, we can help you achieve your objectives with respect to your child, and ensure that you are fully involved in all aspects of your child’s life.
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.