Not every couple bothers to get married. Some couples have happy, healthy long-term relationships without feeling the need to “make things legal.”
However, this can cause problems when a long-term couple splits up and there are children involved. In many cases, parents, especially fathers, don’t even understand their specific legal rights. When they split up, who gets custody of the children? What happens if they never lived together? The answer, of course, is that it depends.
The Issue of Paternity
U.S. family law is clear on one thing: If a married couple has a baby, the legal presumption is that the husband is the father, regardless of the genetic parentage of the child. Presumption of paternity protects both parents and children when donor sperm is used to overcome a fertility problem, and in most states presumption of paternity extends to same-sex couples, meaning that a woman can be considered a parent to her partner’s child if they were married at the time of conception and birth.
There is no such presumption if the parents are not legally married. Thus, it’s very important to ensure that the father’s name is on the birth certificate. There are also legal forms that allow a man to acknowledge paternity as long as both partners agree as to who the father is. If paternity is disputed, then the government and the courts may get involved and genetic testing may be ordered. 25 U.S. states have a paternity registry that the father can be placed on. Disputed paternity may occur when the couple has no relationship, and paternity tests might also be used in cases where more than one man can be the biological father.
If you are legally designated as the father then, under law, you have the same custody rights as a married father, but many people do not know this.
Do Unmarried Fathers Have Custody Rights?
The answer, as already mentioned, is yes. Unwed fathers have custody and visitation rights, as do unwed mothers. There tends, however, to be a bias in favor of mothers in cases involving unwed couples, whether they had a long-term relationship or not. For couples who are not together in a long-term relationship, there is a tendency for the child’s primary caregiver to be the mother. Thus, courts tend to award sole custody to mothers unless the mother is unfit to raise the child, or the father has been the child’s primary caregiver. The latter may result from instances where the mother did not want the child and gave it to the father to raise, or if the mother has been in legal trouble. In some states, custody automatically goes to the mother unless the father petitions for custody, and, again, this is unlikely to be granted unless paternity is proven and the mother is unfit.
Unmarried fathers can, however, often gain shared custody and courts presume that children benefit from having both parents in their lives. Because of this, the default is to allow unwed fathers visitation rights, unless there is evidence of domestic violence, drug problems, or similar issues that might make it unsafe for them to be around the children.
What Should Unmarried Couples Do to Ensure Child Custody Is Established Smoothly?
Unmarried couples who are not living together or who are separating have the same responsibility as married parents who are going through a divorce. They are expected to work together on a parenting plan for the child.
If you are on good terms with your co-parent, then you should be able to work together to establish a plan that is in the best interests of the child. A parenting plan should include things such as who makes the decision about schooling and extracurricular activities, who gets the child for which holidays, etc. If the child is old enough, they should have input into their own parenting plan. Once a parenting plan is in place and agreed on, courts will generally rubber-stamp it. It’s rare for a court to overrule a parenting plan, and generally means they feel that the child would be unsafe with one or both parents. Once the court has made an order, the parenting plan is legally enforceable, and you will need to go back to the table if you (or the child) want to change it.
Mediation is often a good idea even for couples who are on good terms, as emotions tend to run high, and a mediator can help you see past your own feelings and to the interests of the child.
If you are not on good terms, then things can get much trickier. You will definitely need a lawyer (although one is a good idea anyway) to help you support your interests with the other parent.
You can petition the court for help with visitation or custody, especially if your co-parent is keeping you away from the child. Fathers in this situation should be willing to request and follow through with a paternity test. (Be aware that in rare cases the results may not be what you expect and regardless of any emotional ties, if you are not the child’s biological father then the courts are unlikely to recognize your rights).
Because the laws surrounding this are so complicated and vary from state to state, it’s important to engage a lawyer to help you understand your rights and achieve the outcome you want. This is particularly the case if you are involved in a custody dispute with a co-parent, but even if you are on good terms, a lawyer can help with mediation, writing a parenting plan the courts will accept, etc.
If you are an unwed parent who is splitting with your partner or if you have a child with somebody you are not in a long-term relationship with and need to establish custody and visitation rights, contact Willick Law Group to find out what we can do for you. We can help you navigate the complexities of family law and reach an outcome that is good for you and your child(ren).
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