Who Gets Custody When the Parents Aren’t Married?
Who Gets Custody When the Parents Aren’t Married?

Issues related to custody are often the most challenging in any divorce proceeding. However, custody can be even more difficult to resolve when the parents aren’t married.

Generally speaking, the mother and father share equal parental rights over their child. When there is a split, a mediator or judge will do what they think is in the child’s best interest when it comes to custody matters. 

It is in the child’s best interest to have both parents in their life (except in situations where physical abuse, drug abuse, or some other extenuating circumstance is present). Accordingly, custody decision-makers will always try to work out a system that allows parents to share custody.

Of course, the divorcing couple doesn’t always need to take the matter before a mediator or judge. If they can agree to a reasonable and fair custody schedule on their own, it can make questions about custody much simpler.


How Does Paternity Affect Custody?

The same is true when it comes to unmarried couples who are going through a split. If they can work out an amenable arrangement between themselves, they are certainly free to do so.

However, if either parent contests any potential arrangement or believes they should have more time with the child, mediation or court might be necessary.

This can cause an extra hurdle to custody for the male partner. Aside from very narrow circumstances related to surrogacy, establishing maternity is easy. At birth, it is obvious who the mother is. 

When a couple is married, it is also presumed that the husband is the father of the child. In the eyes of the law, paternity is legally established once a birth certificate is issued.

Things are a little different when the couple is not married. While the mother and father can agree to sign a declaration of parentage or paternity, it is voluntary. If the mother doesn’t sign it, the father might not have the same legal rights to custody as the mother.

How Parties Can Establish Paternity

If that is the case, the father will have to take the extra step of establishing paternity to assert his legal right to joint custody. He can establish his paternity through the declaration of parentage or through one other way.

The court can order a paternity test to determine whether a person is the child’s biological father. Just as a father might want to establish paternity to gain custodial rights, a mother might wish to establish paternity to receive child support from the father. 

Because both parties have an interest in legally assigning parentage to the father, the hope is that the mother and the father will agree to sign the voluntary declaration of paternity without court intervention. 

Either way, in a highly contested custody case where the couple is not married, it is in both parties’ best interest to hire competent legal representation. A good lawyer will know how to advise their clients on all issues relating to custody and property division in a divorce or break up where there were jointly owned assets. 

The key is to consult a divorce attorney as soon as possible so that they can advise you on the best course of action from day one.


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