Custody and Visitation - Never-Married Parents : Planning for the Future / Dealing with the Past
The Burley Law Office 


Custody and Visitation - Never-Married Parents

by Betty Burley on 08/08/18

Many of my "Can she DO that?" phone calls start out the same way.  Never-married parents who have had a falling out go their separate ways and the mother takes the child with her.  For weeks or months, things seem fine.  Father is allowed to visit the children - perhaps even take them for days or weeks at a time.  Suddenly, something changes and the mother won't allow the father to take the child out of her sight.  In some cases, she won't allow access even under her watchful eye.

"Can she DO that?" the distressed father asks.  After finding out more about the situation and checking off the boxes:

  • Never married
  • No court-ordered parenting time

My answer is, "Yes, she can do that - for now."

Ohio Revised Code Section 3109.42(A) says:

An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation.

In layman's terms, an unmarried woman who gives birth is that child's sole legal custodian until the father legally establishes paternity and files for allocation of parental rights and responsibilities.  This applies even if the mother has filed for child support and father is current in his payments.  This applies even if the couple has lived together for years and raised the children together without a marriage certificate.

The second part of that section of the Ohio Revised Code is important, too.  It says that when the father seeks an order granting him parental rights and responsibilities, the court must not give the mother special favor in this situation.  From a practical viewpoint, however, the longer the mother is the child's primary caretaker and the longer the father waits to take action, the stronger the mother's case is that she should continue to be the primary caretaker.

There are people who seem to be able to make  informal custody arrangements work for their situation.  When that is the case, my advice to them is to formalize their agreement while they are still in agreement and working cooperatively.   A Shared Parenting Plan or other parenting order puts in place a default schedule that will come into play if the parents are no longer able to agree.  The parents are still able to make flexible arrangements for their child as long as they agree what is in their child's best interest.


This is the third in a series of articles that will discuss common questions about child-related issues.  If you have found this article useful, I hope that you will consider subscribing to my blog at so that you will receive future posts.

This article is shared for educational purposes only.  It is not intended as, and it no  no substitute  for a careful reading of your individual court document and advice from an attorney who has actually read your documents.  No attorney-client relationship is intended to be created by sharing this information.  Attorney Burley is not your lawyer unless you have both signed an agreement and paid any required fees or retainer.

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