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Understanding parents’ rights - Avvo

Parents’ rights give you the legal right to decide how to raise your children. But in some situations, like a divorce, the court may make changes to some of those rights. And if you aren’t married, you might have to establish certain rights in court.

What are parents’ rights?

Married parents automatically share custody of their child. Specific rights vary by state, but in general, you and your spouse have authority over your child’s:

  • Name
  • Education
  • Religious exposure
  • Housing
  • Medical treatments
  • Child care

Your rights as a parent also include spending time with your child and entering into a contract on your child’s behalf, among others.

Parents’ rights and divorce

Divorce can cause your parental rights to change drastically.

As part of the divorce process, you will have to decide on a custody arrangement. Keep in mind there are two kinds of custody:

  • Legal custody refers to who has the right to make decisions about the child’s upbringing, medical care, etc.
  • Physical custody refers to where the child lives.

One parent can have sole physical and legal custody, or custody can be shared between both parents. Shared physical custody generally works best when parents live near each other. It’s also possible to share legal custody, even if one parent has sole physical custody.

Sole physical custody doesn’t mean that parent is the only with a right to see their child. The other parent usually still has the right to regular contact and visitation.

Courts generally prefer parents work out a fair arrangement on their own. If necessary, a judge will come up with a solution he or she feels is in the best interests of the child.

Unmarried parents’ rights

A mother’s rights are usually established by the fact she gave birth to the child, though that doesn’t necessarily guarantee sole custody. An unmarried father’s rights aren’t so simple to establish. State laws vary on when paternity is presumed and when a man must prove it. If the mother is married at the time of conception, states generally presume her husband is the father. When that’s not the case, the biological father will have to prove paternity to establish any rights.

If the mother wasn’t married at the time of conception, many states presume the mother has sole custody. In this case, the father has to go to court to establish his rights. Note that some states do presume joint custody if the father is named on the birth certificate.

To legally change any rights or custody arrangements presumed under state law, you’ll need a court order.

Finally, if you’re unsure of your parental rights, it’s a good idea to talk with a family law attorney. He or she can explain how the law and your specific situation may affect your rights. A lawyer can also draw up a formal custody agreement, and represent you in court to protect your rights.

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