Assuming your daughter's boyfriend has acknowledged paternity, which I
assume is the case given that the baby has his last name, then he is a
legal parent of the child and has equal rights to the custody of the
child. According to the following sources, the best course of action
would be for your daughter to consult with a family law attorney
before she removes the child from the home (unless the child is
endangered or the environment is unfit) to ensure that doing so will
not put her in legal jeopardy.
Each state's laws are a little different, but generally either your
daughter and her boyfriend will have to work out a parenting agreement
out of court, or your daughter will need to petition the court for
physical custody. The court would then establish the parenting plan.
She cannot arbitrarily deprive the boyfriend of physical custody
without a court order. However, many states presume that the mother
has custody of the child.
In summary, there is a chance she can leave with the child without
getting into legal trouble providing that she allows the father to
visit the child if he desires to do so and she is the primary
caretaker. However, each state is different, and laws in this area
frequently change, so I would strongly counsel her to consult a family
law attorney before she takes such an action under most circumstances.
I remind you that Answers provided on Google Answers are general
information, and are not intended to substitute for informed
professional legal advice.
"90. The other parent has taken our child and there is no court order
giving custody to either one of us. Can I go to jail for taking back
Perhaps, but probably not. Usually both parents have equal custody
rights if there is no custody order.
But in two situations without custody orders, unmarried parents do not
have equal custody rights: 1) if paternity has not been established
the father has no custody rights; and 2) if paternity has been
established by signatures on the birth certificate or in a lawsuit
(often handled by the Division of Child Support (DCS) or the DA), the
child's caretaker might have automatic legal custody even if the court
order does not say this. See Question 30. In these cases, the parents
do not have equal rights to take the child even though there is no
But even if you have the right to take the child, you should not do
anything that might harm the child. You should also be careful not to
do anything illegal, such as trespassing or assaulting someone. Avoid
taking the child if you possibly can. Try counseling or mediation, or
try to get a temporary custody order from the judge. Most judges
disapprove of one parent taking a child who has been living with the
other parent for a long time unless there is an emergency situation
like abuse or neglect."
"Taking Children" Oregon State Bar (2006)
"In most states, when a child born to an unmarried mother, if there is
no ADJUDICATION or registration of paternity, the mother has CUSTODY.
Once paternity has been established, a father has the right to seek
custody of or visitation with his child. Even after paternity has been
adjudicated or registered, as long as there is no court order on
custody, many states presume that the mother has custody of the child.
A custody agreement between the parents or a court order can clarify
custody and visitation issues. Unmarried parents without custody are
entitled to the same visitation rights as divorced parents, absence
extraordinary factors such as abuse or DOMESTIC VIOLENCE."
"Unmarried Parents" Encyclopedia of Everyday Law, eNotes.com LLC
"If both partners are legal parents of the child -- either because
they are biological parents, because they have jointly adopted, or
because a nonbiological parent has obtained a legally valid
second-parent adoption -- both parents usually have an equal right to
custody of the child. This means that neither parent has the right to
deprive the other of physical custody or visitation unless a judge
makes such an order. If a court does grant one parent physical
custody, the other parent is usually entitled to visitation and is
next in line to exercise physical custody rights if the custodial
parent becomes unable to care for the child."
"When unmarried parents separate, how does the breakup affect
parenting rights and responsibilities?" Nolo (2006)
When a child's parents are unmarried, the statutes of most states
require that the mother be awarded sole physical custody unless the
father takes action to be awarded custody. An unwed father often
cannot win custody over a mother who is a good parent, but he can take
steps to secure some form of custody and visitation rights.
For unmarried parents involved in a custody dispute, options for the
custody decision are largely the same as those for divorcing couples
-- child custody and visitation will be resolved either through
agreement between the child's parents, or by a family court judge's
decision. But, unlike divorcing couples, unmarried parents will not
need to resolve any potentially complicated (and contentious)
divorce-related issues such as division of property and payment of
spousal support, so the decision-making process is focused almost
exclusively on child custody. For this reason, resolution of custody
and visitation may be more simplified for unmarried parents.
If unmarried parents do not reach a child custody and visitation
agreement out-of-court, the matter will go before a family court judge
"Non-Divorce Cases: Child Custody and Visitation" FindLaw (2006)
A detailed examination of a variety of issues surrounding unmarried
parents can be found at: "Unmarried Parents: Diapers & Decisions" By
Joan E. Lisante, ConsumerAffairs.com (2005)
Search terms: taking child unmarried parents; unmarried parents child custody