Child Custody Between Unmarried Parents

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Unmarried Mother's Primary Right To Custody

The unmarried mother is presumed to have the primary or natural right to custody of children born when she is not married.  Therefore, she has the legal right to custody, care, and control over the child and her rights are superior to those of the father or any other person.  These rights can be defeated if it can be shown that the mother is unfit or has abandoned the child.

What Custody Rights Does An Unmarried Father Have?

Unmarried fathers can take action to be awarded custody of a child.  In most states, if the father’s name is on the child’s birth certificate, he will automatically be recognized as the child’s legal father and have an equal amount of standing in court as the mother. Otherwise, a father's rights depend on his suitability to have custody.  An unwed father cannot win primary physical custody over a mother who is a good parent, but may be able to establish some custody or visitation rights.

Are There Other Factors A Court Will Consider in Awarding Custody or Visitation to Unmarried Parents?

The best interests of the child are the primary consideration in any custody dispute and will prevail over the rights of either parent.  A court will also consider a number of other factors in determining custody, including who the primary caregiver of the child is, the moral character of the parents, the financial status of each parent, and if they are old enough, the child's preference.

What Common Issues Exist For Parents Who Live Together But Are Not Married?

Some common issues for parents of the child who live together but have decided not to “tie the knot” are:

What Restrictions Or Rights Do I Have If I’m Acting Like a Parent to My Partner’s Child but I’m Not Actually a Parent?

In the event that a non-legal parent is serving as a parent to his or her partner’s child, the non-legal parent may find that he or she is unable to make certain decisions that a normal parent may be able to make. Signatures for medical documents or certain school-related documents can only be accepted from a legal guardian. Furthermore, legal parents always have priority in decision making over a non-legal parent.

The easiest solution to these problems is to formally adopt the child. Adoption makes you a legal parent of the child, with all the rights and responsibilities of parenthood.

Can The Parent With Custody Still Receive Child Support If They Are Unmarried?

Yes, child support is based upon the needs of the children and the incomes of the parents, not the marital status (or lack thereof) of the parents. The only exception is in stepparent adoption of the child. In that case, the biological parents no longer have an obligation, financial or otherwise, to the child.

Can the Parents Claim the Child As a Dependent On Tax Returns?

If the parents are unmarried, only one parent can claim the child as a dependent on tax forms. This works on an annually basis, so the parents can work out a plan based on income, custody and/or financial needs. If there is child support, the parent receiving child support does not claim the support as income, meaning that child support is not taxed. The parent paying child support however, cannot claim the support for tax deduction purposes.

What Happens If the Unmarried Parents Reside in Different States?

If the parents live in different states, child custody will follow the rules listed above. The court and the state which makes the decision, however, may be extremely important. In interstate child custody decisions, the child’s home state, the state where the child stayed for the last six months, usually hears the case.

Are There Any Legal Issues Regarding the Child Custody of Parents Who Use Artificial Conception?

Some couples who are unable to physically reproduce together may choose to use artificial conception to have a child rather than adopting another couple’s child. This usually involves the husband using another woman as a surrogate mother or a wife receiving donated sperm from a man other than her husband (with prior consent from all parties in both cases).

Although the law would normally recognize the wife who gave birth to the child as the legal mother of the child, a court order and signed consent by the biological mother can override this assumption and have the wife of the husband be the legally recognized mother. This process is not considered adoption as the surrogate parent was never considered a caregiver to begin with. This works with surrogate fathers as well.

Can An Attorney Help With My Child Custody Case?

Child custody can involve many complex and emotional issues.  An experienced family law attorney can help defend your right to custody of your child. Click this link to an article for more information on fathers custody rights.

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Last Modified: 09-19-2013 08:28 AM PDT

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