Never-Married Mom: What are my rights?

Todd Godwin Cole II

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Family Law Attorney - Brentwood, TN

Contributor Level 11

Posted almost 2 years ago. 2 helpful votes

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1

What's this Guide About?

Many young mothers have never been married and have never, therefore, been involved in court action concerning custody of their child. Questions inevitably arise as to the rights of the mom (and dad) concerning custody, visitation, and child support. The answers I will provide are based on the law in the states where I am licensed --- Florida, Minnesota, and Tennessee. The laws governing such issues do vary from state to state and you should consult with a local attorney concerning the specific circumstances of your case.

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Introduction - Jane Smith and John Doe

I will be using a hypothetical situation in order to better discuss this topic. Jane Smith became pregnant with her first child at age 17 in 2007. The father, John Doe, age 18, left for college during Jane's pregnancy and, for the four years he was in college, had little contact with his daughter. John and Jane never married. It is now 2012, John has graduated from college, and has begun making demands on Jane for increased visitation with his daughter. Jane had been supported by her parents, but having recently moved out of their house to begin a life of her own, now needs child support to make ends meet. What should Jane do?

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Paternity & Custody

In the vast majority of jurisdictions, absent a court order to the contrary, a mother who is not married at the time of her child's birth has sole custody of the child. So, in the case of Jane Smith, John Doe cannot simply demand increased visitation as he has no legal right to do so. In order to have legally enforceable rights to his daughter, including visitation, John Doe must obtain a court order. As a prerequisite to obtaining that order, John Doe must become the "legal" father of the child by establishing paternity. There is a split in jurisdictions as to whether the father's name appearing on the birth certificate is enough to establish paternity. Generally speaking, however, the states will determine paternity through one of four methods - 1) The parents are married / get married, 2) A legal document is signed by the couple in the hospital, 3) There is a genetic test proving fatherhood, or 4) A judge makes a finding of paternity in court.

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Child Support

Child support, just like visitation, cannot be ordered until legal paternity has been established. Again going back to our scenario, this means that, if John Doe wants to obtain a court ordered visitation schedule with his daughter, he will need to expose himself to the possibility of paying child support. Because of this interrelationship between the two issues, child custody and child support are often both addressed at the same time. When making a determination of child support, a court will consider such factors as the financial means of the parents, the child's needs, and whether there are other children borne to the parents who are also in need of support. Local rules vary considerably as to how child support is calculated and you should seek the advice of a local attorney as to what payment you may be entitled to.

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Jane's Options

So, what is Jane to do in response to Dad's demands? First, Jane can do nothing and refuse Dad's demands for increased visitation. There are, however, some dangers with this approach. Jane may be unable to obtain child support from John. If John does initiate a custody action, and Jane has refused visitation, the court may take John's side as the law generally recognizes it is in the best interests of the child to have a meaningful relationship with both parents. Second, Jane can, with the help of an attorney, initiate litigation to establish John's paternity, to obtain a legally enforceable parenting plan, and to obtain child support. The downside with this option is that it may hinder a cooperative relationship (if one ever existed) with John. Third, Jane can wait for John to acknowledge paternity and seek court-ordered visitation. In that event, Jane should consider asking for child support and have both issues addressed at the same time in order to minimize costs.

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Conclusion

Jane's best course of action is to try and privately work out an agreement with John both for visitation and for support, as this option is the most economical choice and has the greatest possibility of preserving a cooperative parenting relationship. However, this path is not always possible when one party takes an extreme position or the parties respective positions are simply irreconcilable. As you can see from Jane's options, addressing custody and child support issues can be a daunting task for unmarried mothers. If you have legal questions, or fear you are heading into a conflict with Dad, it is best to seek the advice of an attorney who can help you select the best option for you and your family.

Additional Resources

Florida Statute 744.301

Establishing Legal Paternity in Florida

Minnesota Basics on Paternity

Tennessee Child Support Handbook

Tennessee Child Support Services

Tennessee Compilation of Selected Laws on Children, Youth and Families, 2011 Edition

Cole Law Group

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