When a married woman has children, both parents share custody equally. Should the couple divorce, the court determines the custody arrangement. Often, both parents continue to share responsibility for the children's welfare and responsibility for making all legal decisions for the children through joint custody. In most states, an unwed mother has sole custody of her child as soon as he is born. Sole custody gives her the ability to claim physical custody of her child and make all of his legal decisions without first consulting with the other parent. The sole custody arrangement remains in place until the father establishes paternity.
If the child's father has not established his paternity of the child, abandonment means nothing. The father has no legal obligation to the child until he signs an acknowledgment of paternity document or submits to a court-ordered DNA test to determine paternity. Once paternity is established, the father reserves the right to file for visitation or joint custody. The father must also contribute to the child's financial needs by paying child support. If the father later abandons the child, the mother can petition the court to strip him of the parental rights he gained when he established paternity.
If the court determines that the non-custodial father has, in fact, abandoned the child, the court will terminate his parental rights. This strips the father of his right to contact the child, obtain information about the child or visit with the child. The custodial parent may then change the child's name, move out of the state or take any other action on her own that would otherwise have required the non-custodial parent's permission.
Unwed mothers are not the only parents who have the right to request that a court terminate the non-custodial father's parental rights due to abandonment. A divorced mother who has custody of her children can make the same request if her ex-husband ceases contacting or visiting with his children for the period of time stipulated as abandonment in her state of residence.
One exception to the abandonment rule for non-custodial fathers in some states is incarceration. A parent who is incarcerated is incapable of visiting with and sometimes contacting his children of his own accord. Should the non-custodial father go to prison, he cannot see his children unless their mother brings them to visit him. Some states, such as Connecticut, have specific guidelines in place protecting incarcerated individuals from losing their parental rights to an abandonment claim. Other states, such as Missouri, hold the individual responsible for his lack of communication with his child and may terminate his parental rights – even if that lack of communication occurred as a result of incarceration.