Divorce and separation cases can be complicated to begin with. But when children are involved, they can include settling disputes over custody (who is the main caretaker), visitation (how often and under what specific conditions will the non-custodial parent see the child), and child support (financial assistance in raising the child). This remains true if the parents of the child are unmarried.
If both parents of the child have been established legally, the disputes will likely be handled in the same manner as if the parents were legally married. When a child is born to an unmarried mother, the mother is automatically granted sole custodianship.
The father has no legal right to see their child without a court order. Legally, there is no presumption of paternity; this means that unwed fathers are not, by default, assumed to be biologically related to their children.
This type of situation can prevent the father from being awarded visitation rights or child custody. This situation may seem unfair at first for unmarried fathers. However, this system also prevents unmarried mothers from pursuing child support from the child’s father. It would be unfair to do so if paternity has not been established and the father has no rights himself.
Thus, the best course of action for a father who desires visitation or custody of his child is to first establish paternity. The easiest way to do this is to be present when the child is born, and help the mother fill out the birth certificate. Another way to establish paternity is to fill out a Voluntary Acknowledgement of Paternity Form.
Each state addresses unmarried child custody cases differently. Many states’ courts will order both parents to retain legal custody, or shared custody. Other states will award joint custody, under the condition that one parent will be considered the primary custodian.
Additionally, others award one parent “primary physical custody” while the other parent is awarded “reasonable rights of visitation.” It is very uncommon that one parent is not given visitation rights at all. That situation typically only occurs when the court has strong reason to believe it would be detrimental to the child’s wellbeing to be involved with the non custodial parent.
Should the mother dispute the paternity claim, the father can petition the family law court to establish his paternity. Alternatively, he can contact a state agency, such as the Child Support Enforcement Division.
Once paternity has been definitively established, the unmarried father has all of the rights to his child as a married father. This is not typically an issue for unmarried couples who live together; however, for those who do not live together, the father will need to petition the court to establish his paternity rights.
It is important that the parents do their best to remain friendly and willing to compromise, in order to avoid lengthy court battles. They should try to work out a reasonable and agreeable custody arrangement that the court will likely approve. This is in the child’s best interest, which is the most important factor when determining custody arrangements.
The number one thing the court considers when determining custody and visitation rights is the best interests of the child. Ideally, this includes time spent with each parent, and each parent being involved in the child’s upbringing. Courts do not like depriving parents of their rights unless they deem it absolutely necessary. Other factors include:
- Financial Status of Each Parent: Whether they can properly care for the child in a financial sense;
- Residence of the Parents: Whether the child has formed strong attachments to their local community and school; or
- Moral Character of Each Parent: Whether the parent treats the child with love and respect, and provide the child with a safe and stable environment, etc.
Parents who live together but are unmarried may face some unique issues, the biggest of which is establishing paternity. Some other issues include parental rights in places such as school and medical facilities, choosing a last name for the child, and claiming the child as dependent on your taxes.
Unmarried parental couples must decide which parent will claim the child on their taxes, as only one parent is allowed. Further, if a parent is receiving child support, they cannot claim the support as income, and the parent paying child support cannot deduct that support from their taxes.
If you are a non-legal parent to a child (parenting your partner’s child, for instance), you may not have any legal rights to making decisions for the child. Legal parents have priority, and the best course of action is to adopt the child.
Another issue is child support. The custodial parent has the right to receive financial support from the non-custodial parent, in order to properly care for the shared child. This applies even if the parents are unmarried. However, if a stepparent adopts the child, the other biological parent is absolved from this requirement.
If the unmarried parents live in different states, child custody decisions are still based on the best interest of the child standard. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the child’s home state is the court with jurisdiction in custody matters. If the child has lived in a different state for six or months, the home state no longer has jurisdiction.
Child custody can be complicated, but parents being unmarried tends to further complicate matters. A knowledgeable and qualified child custody lawyer can help you make sense of the process. They will also inform you of your rights and represent you in court if needed. It is especially important to seek the assistance of an attorney for guidance on interstate child custody issues.