Family Law

When Parents Are Unmarried

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Mothers Have Automatic Custody

There is rarely any doubt about the identity of a child's mother, especially when she delivers her newborn in a hospital. Laws vary a bit from state to state, but in most cases, mothers have full legal and physical custody of their children from the moment they give birth. Legal custody refers to the right to make all decisions on the child’s behalf regarding the child’s health, welfare, and education. Physical custody refers to who the child lives with. If an unmarried father fails to confirm his paternity, he may find it difficult to establish custodial rights.

Unmarried Fathers Must Establish Paternity

When a married woman gives birth, the law presumes that her husband is the newborn’s father. In contrast, the father of a child born out of wedlock must take a few crucial steps to secure his parental rights. First, he must prove that he's the biological father (establish paternity). Then, he must ask a court for custody or visitation rights, and if they’re granted, he must make an effort to establish a parent-child relationship.

A father can establish paternity at the time the baby is born by signing an Acknowledgment of Paternity (AOP) form at the hospital or birthing center where the mother delivered. A valid AOP has the same effect as a court order determining who the child’s father is, and it establishes both parent’s rights and responsibilities to the child, including the responsibility to provide financial support.

Many jurisdictions, including New York and Washington D.C. require both parents’ signatures on the AOP in order for it to establish paternity. Most states require that the AOP be notarized as well. Once the AOP is completed, the father or mother will need to file it with the local Office of Vital Statistics or Department of Health.

If the father failed to sign an AOP after the birth, he can go to the local Department of Child Support Services (“DCCS”) and ask for help filing an AOP or establishing paternity. The father's other option is to file a petition (written request) asking a judge to order a paternity test. If the test is positive, the court will issue an order of "filiation," naming the petitioner as the father.

An Unmarried Father Must Pay Child Support

Once paternity has been established, the father has the same responsibility to support his child as he would if he were married to the child's mother. A child’s mother can ask the court to order the father to pay child support. State child support guidelines will determine the appropriate payment amounts. Although the guidelines vary a bit from state to state, they’re based primarily on both parents’ incomes. Judges do have some discretion to adjust the amount, depending on the circumstances of each case.

Unmarried Fathers Must Act to Protect Custody Rights

Unmarried biological fathers have few custodial rights unless they take legal steps to secure them. Most states have registries where unmarried fathers can officially state they acknowledge paternity to a specific child (or that a court has determined paternity). In New York, it’s called the Putative Father Registry.

Once registered, the father will be notified of any proceedings affecting custody. For example, if the mother puts the child up for adoption, the state will notify the father. If he hasn’t already done so, the father can take a paternity test: If the result is positive, he can challenge the adoption and take steps to gain custody of the child himself. If the father fails to challenge the adoption, a judge may terminate his parental rights and place the child with the proposed adoptive parents.

If the biological father receives notice of an adoption and wants to block it, he will need to act quickly by:

  • filing a court action to block the adoption, during which he must establish paternity: If he didn’t sign an acknowledgement of paternity at the birth, he will need to obtain a DNA paternity test
  • accepting his parental responsibilities, which he can show by assisting the mother during her pregnancy and paying child support, and
  • making regular visits and communicating with the child to show he’s maintaining a relationship and is involved in the child’s life.

A Family Law Attorney Can Help

The laws on unmarried parents’ custodial rights are complex and vary greatly from state to state. This article provides only a brief, general introduction to the topic. For more specific information, please contact a family law attorney.

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