When a child is born to an unmarried mother, the father has no legal right to see his child without a court order. There is no legal presumption of paternity, as unwed fathers are not automatically presumed to be biologically-related to their children.
This type of situation prevents an unmarried mother from seeking child support from the child’s father, while also preventing the father from being awarded visitation or child custody.
If a father desires visitation or custody of his child, he must establish paternity. Sometimes, the easiest way to do so is to be at the hospital after the birth of the baby, and help the mother fill out the birth certificate forms. If this is not possible, he can fill out a Voluntary Acknowledgement of Paternity form.
Should the mother dispute his paternity, he can petition the court to establish his paternity or he can contact an agency such as the Child Support Enforcement Division in his state.
Once paternity is established, an unmarried father has the same rights as a married father. Normally, this is not an issue for unmarried couples who live together, but for those who don’t, the father will need to petition the court to establish his custody rights.
If possible, both parents should try to remain friendly and work out a reasonable and agreeable custody agreement that the court will likely approve.
Above all, the court considers what is in the best interest of the child. Ideally, this would include both parents having involvement in their child’s upbringing.
Other factors a court will consider may include the financial status of each parent, where the parents live, and of course, the moral character of both parents.
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Parents who live together and are not married may face issues that their married counterparts do not face. Issues such as proving paternity, ensuring the child qualifies for government benefits and insurance, parental rights in places such as school and medical facilities, choosing a last name for the child, and claiming the child on tax forms are common issues that unmarried parents must address when living together.
If you are a non-legal parent to your partner’s child, you may not be able to make important decisions regarding your child. Legal parents have priority in these decisions, and the best way to be included is to formally adopt the child.
The parent who has custody of the child is entitled to receive child support, as the purpose of child support is to address the needs of the child—regardless of whether the custodial parent is unmarried. If a stepparent adopts the child, the other biological parent is no longer financially obligated to provide for the child.
In an unmarried parental couple, only one parent can claim the child on their tax return. If a parent receives child support, he or she cannot claim the support as income. Parents who pay child support cannot deduct the child support from their taxes.
In situations where unmarried parents reside in different states, child custody decisions will still be based on the best interest of the child standard. Most states have enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Under the UCCJEA, the child’s home state is the court with jurisdiction in child custody matters. If the child has been out of the home state for six months or more, then that state will no longer have jurisdiction. Contact an experienced family law attorney for guidance on interstate child custody issues.
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Parents who have chosen an alternative method to have children may also face child custody issues. In the case of artificial conception and surrogacy, it is important to ensure the legal rights of the non-biological parent by obtaining a court order and consent from the woman giving birth to the parents’ baby. This also holds true for same-sex parents using artificial conception and surrogacy.
If you have any questions regarding child custody laws between unmarried parents, you should speak with a local family law attorney. Your lawyer will provide guidance and help you assert your rights as a parent. If necessary, your attorney will also be able to represent your best interests in court.
Last Modified: 07-23-2018 07:12 PM PDTLaw Library Disclaimer
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