Table of contentsRights of the mother at birth
When unmarried legal parents separate
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.
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.
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.
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?
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.
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.