In deciding custody, unmarried parents face many of the same legal considerations and challenges as married parents as well as some common only to couples that have never wed.
In disputed cases, a major consideration is simply whether a party is the mother or the father of the child. Courts presume that the unmarried mother has the primary or natural right to custody of children born when she is not married, and she has the legal right to custody, care, and control of the child. The mother’s rights are superior to those of the father or any other person, but these rights can be defeated if it can be demonstrated that she is unfit or has abandoned the child. Unmarried fathers can be awarded custody of a child in this situation. In most states, if the father’s name is on the child’s birth certificate, courts recognize him as the child’s legal father with an equal standing as the mother. Otherwise, a father’s rights depend on his suitability to have custody. An unwed father cannot win primary physical custody over a mother who is a good parent, but he may be able to establish some custody or visitation rights.
The gold standard for child custody is the best interests of the child. This consideration is used in all family law courts in any custody dispute, and it prevails over the rights of either parent.
In its application in a given case, the best interest of the child means what a judge says it means, but a number of best interest factors come into play, such as the child’s age, gender, mental and physical health, the health of parents, the lifestyle and other social considerations of parents, the love and emotional ties between parent and child, the parents’ ability to provide food, shelter, clothing and medical care, the quality of schools of the child, the child’s preference if the child is over 12, the ability and willingness of the parent to foster a healthy relationship between child and other parent, and the stability of the environment.
Unmarried parents may also face issues and disputes not normally shared by married parent including proving paternity, choosing a name that both parents accept, making sure the child qualifies for government benefits and insurance, and deciding child custody and visitation in the event of a parental parting.
Sometimes one parent is a so-called second parent, a non-legal parent who is serving as a parent to his or her partner’s child. The non-legal parent may find that he or she is unable to make certain decisions that a legal parent makes. For example, signatures for medical documents or certain school-related documents can only be accepted from a legal guardian. Furthermore, legal parents always have priority in decision making over a non-legal parent. This situation can be remedied by adoption, which makes a person the legal parent of the child, with all the rights and responsibilities of parenthood.
An unmarried custodial parent can receive child support. Support is based upon the needs of the children and the incomes of the parents, not the marital status of the parents. The only exception is in stepparent adoption of the child. In that case, the biological parents no longer have an obligation, financial or otherwise, to the child.
One unmarried parent (but only one parent) can claim the child as a dependent on tax returns. This works on an annually basis, so the parents normally decide on a plan based on income, custody and/or financial needs. The parent receiving child support does not claim the support as income, so it is not taxed; the parent paying child support, however, cannot claim the support as a deduction.
Sometimes unmarried parents live in different states. The court and the state that makes custody decisions are important. In interstate child custody decisions, the child’s home state, the state where the child stayed for the last six months, usually hears the case.