Most experts agree that children benefit from a continuous, loving relationship with both of their parents, and family court procedures generally reflect that understanding. In cases of divorce, both parents are presumed legal rights to parenting time, unless one parent can be shown to pose harm to the child. The law doesn’t automatically favor one spouse over the other. But in cases that involve unmarried parents, things are complicated.
Children born to unmarried parents still benefit from an ongoing relationship with each parent, so it’s worth putting in the effort to work out custody and visitation rights. However, it’s helpful to know and understand how unmarried parents’ custody and visitation rights are impacted by separation, and what obstacles unmarried parents might encounter.
Going to Court
When a married couple divorces, they must go through a legal process, which means that they’re going to interact with the family court system at some point. Not all divorces go all of the way through the process – divorce settlements and custody arrangements are often settled out of court by the parents and their legal advocates before any final hearing can occur – but their custody arrangements are still submitted to a court for approval.
However, when a cohabiting or co-parenting couple breaks up, they don’t necessarily need to interact with a court at any point to do so. This means that they may not automatically see it as necessary to involve the court in custody arrangements. When unmarried parents break up, they often come up with their own informal arrangements for how child custody will work without bringing the legal system into it.
The problem is that if one parent fails to live up to their end of the informal agreement, the other parent has no way to enforce it. When a divorced parent wants to move far away with their child, their legal custody arrangement may require them to get permission from the court to do so and make a formal plan to ensure that the child continues to have a relationship with the parent who’s not moving. In some cases, one parent can prevent the other from moving with the child or be awarded custody themselves.
Unmarried parents who don’t have a court order may not have any recourse, and if the parent who lives with the child leaves the state, it can be even more complicated for the other parent to go to court to establish their parental rights. Therefore, it’s a good idea for unmarried parents who are breaking up to go to family court to establish a formal custody arrangement right away. This protects both parents, and more importantly, it protects the child from losing their relationship with either parent.
Who Gets Custody?
While family law in most states doesn’t privilege one parent over the other, the only unmarried parent who is automatically presumed to be the legal parent of a child is the parent who gave birth to the child. An unmarried parent who didn’t give birth to the child may have to prove that they are, in fact, the child’s other parent before they can be granted formal custody rights.
In some states, this is as simple as making sure that the parent who did not give birth is listed as a parent on the child’s birth certificate. In most cases, this can be done in the hospital at the time when the child is born. Generally, for heterosexual couples, if the mother acknowledges that the father is the father of the baby, and he acknowledges it as well, he can be added to the birth certificate.
Same-sex couples may face additional hurdles – some states have gender-neutral birth certificate forms, while others may require some type of second-parent adoption process before both parents can be legally recognized as their child’s parents. This can definitely be a burden, but if an unmarried parent has had to go through a second-parent adoption process, they can at least be sure that in the event of a breakup, they have legal proof that they are one of their child’s parentage.
How Unmarried Parents Establish Parentage (Paternity)
If only one parent is listed on the birth certificate and the unmarried couple breaks up years later, how can the parent not listed establish their parentage? There are a couple of ways, depending on the state’s laws and requirements. Paternity tests are one option.
In other cases, the parent who isn’t listed on the birth certificate may have to prove to the court that they’ve acted as a parent to the child, such as by providing support and spending time with the child. Once the child’s parentage has been established, both parents should have a legal right to spend time with the child, as long as the court determines that doing so is in the best interest of the child.
This can take the form of joint custody or of one parent having primary custody and the other having visitation. As long as both parents are fit and interested in playing an active role in their child’s life, there should be no reason for a family court to prevent either parent from having a reasonable amount of time in their child’s life. For unmarried parents:
- Establishing parentage might be more difficult than being awarded some custody or visitation, after rentage is established.
- Establishing parentage is a mere formality, depending on the situation.
- Establishing parentage can be the biggest barrier to being awarded custody or visitation.
- Who aren’t sure that they’re legally recognized as their child’s parent, should seek legal advice about how to get that recognition.
- Who are separating should also investigate the laws in their state and find out how they can get a formal custody arrangement.
A legal resource group like National Family Solutions can help you understand your legal rights, and what strategies can help you to ensure your parental rights.