Written by Canterbury Law Group

Child Custody Battles Between Unmarried Parents

Child custody battles between unmarried parents create many questions. Who has legal custody of a child when the parents are not married? Who has custody of a child if there are no court orders? What rights does a father have if he is listed on the birth certificate? What rights does an unwed father or mother have? These are common questions we hear all the time when facing child custody battles between unmarried parents.

What Rights Does an Unmarried Father Have?

Without a court order, an unwed father does not have a legal right to see his child. Furthermore, when a child is born to an unmarried mother, the unwed father does not have a legal presumption of paternity and is not automatically presumed to be the biological related to the child.  Under binding U.S. Supreme Court authority, the father has no say on whether the mother can carry the child to term and birth, or terminate the pregnancy early.  It’s 100% mother’s decision by law.

Who Has Legal Custody of a Child When the Parents Are Not Married?

If the parents are not married, the mother has immediate and presumptive legal custody of the child (Sole & Physical). An unmarried father does not have legal rights to custody or visitation. Only a legal parent can request the court to grant custody or visitation rights.  Those rights can only be acquired by commencing and litigating a formal paternity lawsuit in a court of law.

Absent custody orders, father cannot see the child.  Absent custody orders, the mother cannot recover child support payments from the biological father.  On the other hand, if a child was born during a marriage, both the mother and father have legal custody of the child immediately upon birth.

Unmarried Fathers Rights to Custody & Visitation

If an unmarried father wants to attain child custody or visitation rights to his child, he must first establish paternity. Most of the time paternity is established after the birth of the baby when the father fills out his part of the birth certificate form. If that didn’t happen, fathers can always fill out a Voluntary Acknowledgement of Paternity Form. This is a document that establishes legal paternity and can be used to record the father’s name on the child’s birth certificate.

If the mother disputes his father’s paternity, the father can commence a lawsuit and petition the court to establish paternity or he can get in touch with an agency like the Child Support Enforcement Division in his state.

Once an unmarried father establishes paternity, he then has the same rights as a married father.

Generally, this is not a big issue for couples who live together unmarried, but becomes a much larger issue for unmarried couples who do not live together. If you are an unmarried father who doesn’t live with your kids you will need to petition the court to attain custody rights of your child(ren).

If it’s possible, the mother and father should try to work out a reasonable custody agreement that will likely be approved by the court. Most agreements regarding paternity and child custody arrangements will be rubber stamped by the Court so long as the agreements are truthful and accurate.

What Rights Does a Father Have if He is on the Birth Certificate?

A father with his name on the birth certificate of the child has some limited rights.  You should consult with a licensed attorney to better understand how to perfect those rights.

Unmarried Mothers Rights to Custody & Visitation

Community Legal Aid states “An unmarried woman who gives birth to a child has custody of the child automatically.”

This above statement assumes that you and the father have never married each other, you were not married to another person when the child was born, and that there were not any previous court orders giving anyone else custody or visitation rights to the child.

An unmarried mother has legal custody without having to go to court. Unmarried mothers have all the rights of a parent including:

  • The right to make the decision about who can see the child and for how long
  • The right to limit visitation, or to remove the child from the state
  • The right to enroll their child(ren) in school
  • The right to acquire medical treatment
  • The right to receive public benefits for the child
  • And more

Other Factors the Court Will Consider for Child Custody & Visitation Rights

The court will consider what is in the best interest of your child(ren). In a perfect world, this would include both the mother and the father being involved in the child’s upbringing.

Other factors the court will consider may include:

  • The financial situation of each parent
  • Where each parent lives
  • The moral character of each parent

Dealing with Child Custody Issues for Parents Who Live Together but are Unmarried

Parents who are unmarried and living together face different issues than married parents do. Issues such as ensuring your child qualifies for insurance and government benefits, proving paternity, parental rights in places such as medical facilities and schools, choosing your child’s last name, and claiming your child on tax returns are common issues that parents who are not married must address when living together.

What If A Am a Non-Legal Parent to My Partner’s Child?

If you are a parent to your partner’s child, you are a non-legal parent and you may not be able to make important decisions regarding your partner’s child. Legal parents are the only ones that have priority in these decisions. The best way to be included with important decision making for the child is to formally adopt them or to seek in loco parentis status from a court order.

Child Support Considerations for Unmarried Parents

Non-custodial biological parents, even if unmarried, are required to pay child support until the children reach age 18. However, child support responsibilities continue until 19 if the child is unmarried and a full-time high school student. If an unmarried mother wishes to be paid child support, she must legally establish paternity first. The father can voluntarily comply, or the mother can file a lawsuit to establish paternity through DNA testing. In a voluntary case, the court will order the father to submit genetic testing. If paternity is established through the DNA test, the court will enter a child support order to force the father to make child support payments until the child completes high school or turns 19 years old, whichever sooner occurs.

Who Should Claim Child on Taxes If Not Married?

Only one parent can claim their child(ren) on taxes if they are not married. Generally, the parent with the highest income should claim the child on their tax return. Furthermore, the parent that the child lives with most often is also the one who should claim the child as a dependent. You should also know that the parent that receives child support cannot claim child support as income. And, parents that pay child support can’t deduct support payments from their taxes.  Child support is always a tax-free exchange of money between parents.

What If the Unmarried Parents Live in Different States?

Child custody decisions are based on the best interest of the child standard when unmarried parents live in different states. Most states, including Arizona, have enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which helps streamline custody disputes across the nation.

The court with jurisdiction in this situation is the child’s “home state.”  According to Legal Resource Center “The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding, including any period during which that person is temporarily absent from that state.”

Start your initial consultation with an experienced family law attorney for more guidance on child custody issues, particularly if multiple states are involved.

Read More About:

Child Custody Rights for Mothers

Child Custody Rights for Fathers

Child Custody Laws In Arizona

Child Custody Battles Between Unmarried Parents

How To Get Custody Of A Child In Arizona (Process)

Child Custody Issues Involving Artificial Insemination or Conception?

Parents who chose artificial insemination may also be faced with significant child custody issues. The only way for a non-biological parent to obtain legal rights is by obtaining a court order and consent from the biological mother of the baby.

Do I Need A Lawyer for My Child Custody Issue?

You should speak with a family law attorney if you have any questions about child custody laws involving unmarried parents. Our family law attorneys can provide guidance to help you assert your legal rights as a parent. If needed, our attorneys can also represent your best interests in court.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs. 480-240-0040 or [email protected]

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