- January 22, 2021
File Under: Cohabitation, Custody
Up to 40% of children in the United States are born outside marriage, and the rates are rising. This presents some unique issues in custody cases, even though there are many similarities to custody issues between married parents. You should seek the advice of a divorce lawyer if you are an unmarried parent who has just split up with the other parent.
In Some Cases, Paternity Must Be Established
The first issue that unmarried parents may encounter is if the couple splits up before the baby is born. Fathers often question what parental rights they have for an unborn child. In New Jersey, a family law attorney would tell you that the answer is that the father has no rights to make decisions until the child is born.
When it comes to deciding any custody dispute between unmarried parents, the test is the same one that is used for a court case between married parents. The judge will still look at the best interests of the child. Of course, this is a very flexible test that allows the court to consider any one of a number of factors. Nonetheless, there are specific things that play a part in the court’s decision.
Even before anything else, an unmarried father has an additional hurdle. Once the child is born, there is a presumption that the mother has sole rights until the father legally establishes his paternity. The father must do this before he even begins to argue for his custodial or parental rights. Outside that, a father has no presumptive rights. The theory would be that the father needs to acknowledge that he is in fact the father before he has rights under the law. This would also mean that he would then need to assume support obligations for the child.
Usually, parentage is established through the father putting his name down on the birth certificate. In New Jersey, the father will sign a certificate of parentage, which is the legal way of establishing paternity. Only then can the father’s name appear on the birth certificate.
In many cases, this is non-controversial, and both parents agree to this step. Sometimes, it is a matter in dispute between the parents. If a father is having difficulty establishing paternity, he will need to file a lawsuit in court to do so. This could involve a court-ordered paternity test. However, he will need a court ruling establishing paternity before anything else is discussed regarding custody, parenting time or child support.
In some cases, the father of the child may refuse to acknowledge paternity. In that case, there would need to be a court hearing as well to establish that the person whom the mother claims is the father really is the child’s biological dad.
Parents Living Together Who Split Need a Custody Agreement
If a couple has been living together, had a child and then split up, the challenges are somewhat similar to if they were married. If the father is on the birth certificate, he has rights as well. The father’s name on the birth certificate would presumably put him on the same footing as any other married father when it comes to custody rights.
The hope is that any dispute could be worked out among the parties, and they can agree to the role that the father would have going forward. Usually, there are the same issues to tackle such as custody, support and parenting time. Like any divorce agreement, the best thing is for the parents to come up with their own parenting plan to which they both mutually agree. This would respect the right of each parent to both see the child and participate in child-rearing decisions. Like any divorce case, the presumption is that child custody would be awarded to the parent who is the primary caregiver. However, there is nothing stopping the parents from agreeing to a joint custody arrangement.
If paternity is established, the father has the same rights to see the child as any other parent. The father would want to work with a divorce lawyer to help draft an agreement that ensures his rights. If the couple splits up, it would be very similar to a divorce in that it would be a prompt for the couple to negotiate a custody agreement.
Fathers Have Custodial Rights
Many fathers are afraid that if they were never married to the mother, they wouldn’t be able to see their child if the couple ends their relationship. While they would need to secure custody and parenting time, they would not have to worry about losing their parental rights solely by virtue of the fact that they were not married to the mother at the time that the child was born.
The court will usually begin with the presumption that both parents need to be in the child’s life and have equal access to the child. The focus is on what is in the best interests of the child. This will lead to a standard application of the best interests test to set the proper custody and parenting time schedule.
The court will consider some of the following factors in deciding the custody and parenting time issues:
- The age of the child
- The number of children in each home
- The physical location of the child and the parents
- Each parent’s fitness
- Time spent with the child before separation
- The child’s special needs
One factor that could come into play with unmarried parents is where each of the parents lives. A court will want to minimize disruptions in the child’s life. As such, if the father lives far away from the mother, it is a factor that could impact the parenting time schedule. It would not mean that the father does not get to spend time with his child. However, a court will not want the child to shuttle far distances often, especially in light of the child’s school schedule. Therefore, where each parent chooses to live after the breakup is important. The closer the parents reside to each other, the easier it is for a child to transition between homes.
There Can Be Some Special Issues Depending on the Child’s Age
In many cases, unmarried parents who split up have not had as long of a relationship as married parents. In some instances, the child who is the subject of the custody and parenting time agreement is very young. There are some special custody and parenting time issues when an unmarried father is trying to spend time with an infant child. At first, his time with the child may be somewhat limited due to the age and needs of the child.
This means that an unmarried father may not get overnight parenting time with his child until the baby gets a little older. The child would need to ease into the parenting time schedule. In other words, the father may not be able to expect the same custody time at first as he would in the future. As the child gets older, they would start spending progressively more time with the father. The focus would be on spending quality time with the baby and not necessarily counting overnights. Frequent contact may be more important than overnights at this stage depending on the particular facts and circumstances of each case.
When unmarried parents split, they can use legal help to protect their own rights and work for the best solution for the child. A family lawyer can represent you as you seek a custody and parenting time agreement. If you have any concerns, a divorce attorney could advise you on the best path forward. The best-case scenario is a negotiated custody agreement. In a worst-case scenario, you and your family lawyer would need a hearing in front of the judge.
Contact a divorce attorney with the New Jersey firm of Lawrence Law if you have questions about a custody arrangement. You can reach a family law attorney in Watchung or Red Bank at (908) 645-1000 to schedule your initial consultation.