Cincinnati Family Law & Divorce Blog: When Parents Aren’t Married, Can One Parent Keep The Child Away From The Other Parent?

This answer to this question depends on whether the parents are married or unmarried. If the parents are married, both parents have equal custodial rights of the children born during marriage. If there is no court order allocating parental rights and responsibilities, either spouse can withhold the children from the other. If you want additional information regarding married parents, please see our blog psot from June 2019 “Can my spouse keep the children from me?”


However, the rule for unmarried parents is different. In Ohio, when a child is born to unmarried parents, the child’s biological mother is automatically designated the custodial parent and the father is not entitled to any parental rights until paternity is established.


Paternity can be established in a few different ways. If the mother and father acknowledge paternity, they may sign an Acknowledgment of Paternity Affidavit. This affidavit is the document that allows for the father’s name to be added to the child’s birth certificate. Thus, the affidavit is sometimes completed at the hospital when the child is born and both parents are present. However, it can also be completed anytime thereafter. Paternity can also be established through the mother’s local county child support enforcement agency (CSEA) office. The mother or father can request genetic testing to confirm the child’s biological father. Lastly, either parent can file a petition with the court to establish paternity. The court can order both parents to participate in genetic testing if he/she was unwilling to do so voluntarily.


Even upon paternity being established, however, a father does not automatically obtain legal custody or the right to parenting time with the child. Instead, the establishment of paternity allows the father to petition the court for visitation, custody, or shared parenting. The father does not have any visitation or custodial rights until the court grants him such an order. If a court grants the father’s request, then both mother and father have parental rights as outlined in the court’s order. Upon the issuance of the Court’s order, both parents are legally obligated to follow the order, and neither can withhold the child from the other or he/she could be held in contempt of court.


If paternity has not been established, the mother has sole legal custody of the child. As the legal custodian, mother has the sole authority to make any and all decisions regarding the child, including whether any parenting time with the father is appropriate. She may also relocate to another county or another state without the father’s consent.


Thus, in cases of unmarried parents, whether or not paternity has been established is critical. Until paternity is established, the mother is the sole legal custodian and the father has no parental rights. However, even after establishing paternity, a father must take the additional step of petitioning the court for an order to grant him custodial rights or parenting time. Thus, upon paternity being established, a father is one step closer to being on an equal footing with the child’s mother regarding custody rights of their child.