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assuming that the father signed the birth certificate at the hospital or some form of acknowledgment of paternity, he is presumed to be the legal father, and as such has equal rights, legally speaking, as a mother does. If the father has not signed any such document, for the father to have any legal rights to the child, there would need to be what's known as a "paternity action".
the fact that the parents were never married is not have much of an effect on anything, other than the situation where the father has not formally acknowledged the paternity of the child.
Otherwise, the court will consider the same factors in awarding custody to either of the childs parents.
Do we need to file a divorce and need the court order for the custody.
if you were never married, no, because a divorce is an action specifically asking the court to dissolve the marriage. You do not need to dissolve a nonmarital relationship. This is assuming that you have not filed for a domestic partner situation either.
However, if the custody issues are not agreed, a court would need to address that, and award custody and visitation accordingly.
If the custody issues are agreed, this should be in an agreement, as well as other issues such as child support, insurance, etc.
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