Table of contents

Rights of the mother at birth
Fathers' rights
When unmarried legal parents separate
Custody
Visitation
Child support
The best interests of the child

It’s become increasingly common for unmarried couples to have children together. As with married parents, however, unmarried parents still need to work out issues of custody, visitation, and child support. For unmarried parents, determining the best interests of the child can have added legal complications, with issues such as fathers' rights and child custody rights presenting unique challenges.

If the legal parents cannot reach an agreement, the dispute will be turned over to the family court system. Even in cases of unmarried parents, family court has specific formulas for determining custody and child support arrangements. These specific laws governing mothers' and fathers' rights vary from state to state, but share many common factors.

Rights of the mother at birth

A woman is presumed to have the natural right to primary custody if she is unmarried when she gives birth to a child. This can only be overturned if she is proven to be unfit or has abandoned the child. If you and your child’s other parent are not together when the child is born, the mother will be considered to have legal custody. In these cases, the biological and legal mother has legal right to custody of the child; her rights are considered over those of the father or anyone else.

Fathers' rights

However, if the biological father’s name is on the child’s birth certificate, then in most states he will automatically be legally recognized as the child’s father and have certain fathers' rights, including having equal standing in court. Otherwise, paternity must be established using blood or DNA tests. Unmarried fathers can or seek to establish their fathers' rights and share legal and physical custody of their child, or take action to be awarded custody of their child if they believe the mother is not a fit parent.

Even if you have given birth to a child and are not in a relationship with the father, it is usually still in the child’s best interest to establish legal paternity. The child’s father is at the least obligated to financially support his children. He may also may seek visitation. Legal fathers have specific fathers' rights, and if the legal father is interested in establishing a relationship with his child and you have no concerns for the child’s health or safety, it is likely in both your and the child’s best interests to cooperate on establishing a visitation schedule. The father may decide to seek custody in the future and one of the factors the court considers is which parent is most likely to support the child’s relationship with the other parent. If you deny parenting time visits now without a justifiable reason, it could hurt your custody case in the future.

When unmarried legal parents separate

If you have a child or children together with your partner and then split up, child-related disputes will normally be handled by a family court in much the same way as those of a divorcing couple, including deciding issues of parenting time, child support, and child custody.

This applies to any legal parents, whether you are both biological parents, you jointly adopted a child, or you are the non-biological parent and have adopted the child as a step-parent or second-parent. Depending on the laws of your state, if you cannot come to an independent agreement regarding custody, visitation, and child support you may be required to attend mediation or submit to an evaluation by a court social worker. If you propose a reasonable arrangement and both parents agree to follow it, the judge will usually agree as well.

Otherwise it is up to the court; in these cases the legal standard a family court judge uses to make decisions regarding visitation and child custody is the “best interests of the child.”

The three factors a family court judge must consider are custody, visitation arrangements, and child support.

Custody

In most states, family court judges prefer that both parents retain legal custody. Joint, or shared, legal custody means that each parent has equal standing when it comes to making decisions that affect the child, such as living arrangements, medical care, and education. Physical custody may also be shared, where the child or children spend a roughly equal amount of time with each parent.

In some cases of unmarried child custody, the court may award joint legal custody but designate one parent as having primary physical custody. In these cases the parent who isn't the primary caregiver is usually awarded parenting time, based on the schedules of both parents and the children, if they are old enough to have school and other outside activities.

In determining custody, the best interest of the child will always be considered over the preference of either parent. The factors the court will consider when determining custody vary by state, but commonly include:
  • Where has the child been living, and are there established school, church, and social ties there?
  • Who has been the primary caregiver in meeting the children’s physical and emotional needs?
  • What are the preferences of each parent?
  • Does the child, if old enough to express it, have a preference?
  • What emotional bonds do the children have with parents and other family members?
  • Does either parent or the child have physical or mental health issues that could affect custody arrangements?
  • Which parent is most likely to support a continued relationship with the other parent and extended family?


Visitation

Visitation, now often called “parenting time,” can be established by both parents in agreement, or when no agreement can be reached, will be set by the court. When parents share physical custody, generally a rotating schedule is established to determine where the children spend various holidays and school vacations. When one parent has primary custody, the other parent typically has generous visitation granted – often evenings and weekends during the school year, with holidays and summer vacation again split between the parents on rotating schedules.

If one parent can prove that spending time with the other parent is dangerous or detrimental to the child, due to a history of physical or emotional abuse, these visitations may be required by the court to be supervised or to cease altogether.

If the parent with primary custody frustrates or otherwise impedes your ability to carry out your court-ordered parenting time, you may have to go back to court. Often these sorts of cases involving child custody rights can be resolved by both parties meeting with a mediator or social worker to sort through differences, misunderstandings, and scheduling issues. If no resolution can be reached, it may be necessary to hire a family law attorney who can argue your case in court. A judge can order visitation and the other spouse would be in contempt of court if he or she refuses to let you see your child at the scheduled times.

Child support

In every state, both legal parents are required to provide financial support for their children, regardless of their marital state. Each state has guidelines determining child custody rights, including minimum levels of support and formulas the family court uses to determine what the monetary contribution by each parent should be. These depend on a variety of factors, including how much time each parent spends with the child and the incomes of each parent.

If you have primary physical custody the court assumes you shoulder the basic costs of taking care of your children, such as providing housing, food, and health care. In these cases involving child custody rights, the court will determine a specific amount of support for the non-custodial parent to pay, based on each parent’s income and costs. The monthly amount awarded varies widely based on each individual situation and the laws of each state; the judge may look at factors such as housing, medical and dental bills, and tuition for private schools or child care costs.

If the needs of the children change or either parent’s financial situation alters, due to life events such as job loss, medical crisis, or marriage, the court can modify the amount of support the non-custodial parent pays. If the non-custodial parent fails to pay support, the custodial parent can sue for payments owed; if the parent has the ability to pay and does not, he or she may also face criminal charges. If you will be negotiating child support in your case, you can look up your state’s minimum guidelines and formulas. This will give you an idea of what to expect and a place to start your negotiations.

The best interests of the child

It is important for both parents to understand that family courts will attempt to establish custody, visitation, and support that function in the best interests of the children. Whether it's child custody rights or fathers' rights, if you find yourself battling with a former partner on these issues, it is in your and your children’s best interests to consult a family law attorney experienced in dealing with unmarried parents and the family court system.