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FAQ: How Does Child Custody Work With Unmarried Parents?

Michael Tierney
December 15, 2022

Having a child is one of the biggest investments people make in their lives, committing to raising a new life with someone else. This commitment to raising a child is one of the most important roles we can take as adults and is not something done lightly. In most cases, parents feel an extremely powerful bond with their children that links them together until the end of their lives.

In rare cases, parents lack the associated bond inherent in raising a child, though odds are you and your partner have this connection to your children. Unfortunately, one of the biggest issues affecting children is when the connection you share with your partner diminishes, and you can no longer remain in a relationship.

Typically, when couples separate, child custody issues are addressed through legal channels to ensure the child is in the custody of one of their parents. The issue is that most people assume that child custody arrangements are exclusively used for couples who are getting divorced. The problem with that mentality is that couples do not have to be married to have children. If you and your partner have a child but were never married, you might wonder what options you have since there are no attached divorce claims.

Solution Fortunately, the law has caught up to modern practices, and child custody arrangements still function despite being unmarried.

How Does Child Custody Differ for Unmarried Couples?

When you share a child with someone who is not your spouse, you might wonder how it affects your ability to secure custody. Specifically, you might wonder if not being married makes the process different compared to couples going through a divorce.

The good news is that the only difference between you and those couples is that you are not going through a divorce. The divorce proceedings usually incorporate child custody negotiations, but you can complete the process independently of divorce.

This means that breaking up with your boyfriend or girlfriend will still lead to the same custody negotiations that divorcing couples undergo. Aside from this, the custody hearings are virtually identical to divorce proceedings but without worrying about spousal support.

Unmarried Couple Negotiating Child Custody

Solution There is no significant difference between custody arrangements for unmarried couples and married ones because the concern is about parental rights and connection to the child. Even though you and your partner were never married, you are both parents with a right to be in your child's life.

This right remains despite the child being born out of wedlock, though this permission was only due to our ability to overcome the antiquated stigma of such births. Nevertheless, there are no additional hurdles that unmarried couples will face compared to divorcing couples. Unfortunately, the only advantage you have over a divorcing couple is the lack of divorce.

Insofar as child custody arrangements are concerned, you must meet several requirements before a decision is made. Unless previously agreed upon by you and your partner, custody arrangements will need to be mediated by members of your state court system. Even those agreed upon by the couple must be approved within the bounds of the court system to be considered valid. This means there are several details you must consider when negotiating custody with your partner and their legal team.

How Does Legal Parenthood Work With Unmarried Parents?

The biggest component of custody negotiations is the arrangement between the child's legal parents. However, there is a common misconception that a legal parent means the biological parent. While it is common for legal parents to be biological parents, this is not always the case, as extenuating circumstances can cause someone to be a parent to a child to whom they have no biological connection. This is true of couples who have adopted a child or when one parent legally adopts the child of their significant other. This means adoptive and stepparents are considered legal parents under these circumstances.

Conversely, a biological parent can lose their status as the legal parent in some circumstances. They can have their parental rights stripped if they are found guilty of a major crime like murder, rape, abuse, etc. Similarly, a parent can waive their parental rights by refusing to be listed on the child's birth certificate or surrendering them to the foster system. Even surrogates have no legal rights to parenthood over the child they carry on someone else's behalf. Legal parenthood is the foundation of all custody arrangements and determines who has a legal right to stake a claim in a child's life.

A Mother and Child

Being the legal parent to a child is the only prerequisite for being involved in custody negotiations and maintaining a right to be a part of your child's life. That said, unmarried couples will usually have a biological child they conceived before the idea of marriage was broached. It is uncommon for unmarried couples to commit to the adoption process or for a boyfriend or girlfriend to adopt their partner's child before marriage.

Although, if you did not adopt your partner's child but have a strong connection with them, you can petition for rights as a nonlegal parent. Nonlegal parents can, at most, request visitation rights though the odds of a successful claim are slim.

Ultimately, your marital status has no impact whatsoever on your legal right to seek custody of your child. The only concern that affects unmarried couples is negotiating the custody arrangement.

How Do You Draft a Parenting Agreement?

Like a divorcing couple, unmarried couples can draft a parenting agreement without oversight from a judge. Official legal professionals usually mediate such agreements but do not dictate the terms. The only condition is that you must draft the agreement in accordance with what is best for your child. The child's best interest is the court's priority, and it will dismiss a parenting agreement that violates that consideration.

Otherwise, the agreement you draft with your partner will be used as the initial custody arrangement. It is important to remember that the arrangement is subject to change depending on how different your situation is later in life. This is because the core issues outlined in the agreement are the details that affect the child's time with each parent and the financial considerations. The agreement will first outline each parent's physical and legal custody rights.

Drafting a Parenting Agreement

Usually, the courts aim to have the legal custody of the child shared between both parents and periods of shared physical custody. This ensures that both parents are involved in the important parts of the child's upbringing and that the child spends time with both parents. In extreme circumstances, legal custody is only assigned to one parent. Usually, legal custody is forfeited when one parent is unable or unfit to make decisions in the child's best interest. Legal custody allows a parent to determine the education or medical care the child receives. An unfit parent would not be trusted to make such important decisions.

Physical custody only extends to where the child is physically living. This is usually divided between the parents with alternating weeks or weekends depending on the situation. This is joint physical custody, but one parent is usually the primary custodial parent. In most cases, the courts assign the primary custodial parent based on which one has the resources necessary to care for the child full-time.

Unfortunately, custody can be difficult to negotiate in the court system, so some couples try to work it out between themselves. You might decide that the best course of action is to have the child stay with your partner due to their ability to afford a larger home. Alternatively, you might insist on maintaining primary custody for the same reason.

Determining physical and legal custody is one of the most important details of custody negotiations, but it is not the only one. There are additional details that cannot be negotiated between the parents and must be determined by a judge. These details are some of the less pleasant parts of custody arrangements, but they are predicated on which parent is assigned primary physical custody.

How Do Child Support Payments Work?

The non-custodial parent is usually saddled with an additional responsibility to help provide for their child. This additional responsibility is paying child support to the custodial parent to ensure the finances needed to care for the child are present. Child support payments are too important for parents to negotiate alone since several factors determine how much the non-custodial parent is expected to pay.

While it might seem unfair that the courts determine the payment amount, it is done to protect the interests of both parents and the child. After all, some spouses might insist on paying less than is reasonable, while others insist on being paid more. You can reach an initial agreement without oversight, but the judge must approve your agreement and can reject it if they deem it insufficient. The judge overseeing this part of the negotiations will ensure that the child support payments remain fair to the payer and the payee.

Some people erroneously believe that child support payments are only expected in divorce cases, but the truth is that it is mandatory for all separations . Even unmarried couples who break up must negotiate child support payments to ensure both parents contribute financially. Regardless of the custody division, the non-custodial parent must pay the child support or risk violating the Deadbeat Parents Punishment Act and facing jail time and fines. Repeated violations might cost you your parental rights and ensure your ex retains full legal and physical custody. Fortunately, you can rest assured that the child support payments will not leave you unable to live comfortably.

Parent Paying For Child Expenses

The biggest detail judges consider when determining child support payments is the non-custodial parent's annual income. If you are only making minimum wage, you will not be expected to pay more than what you are making, nor will you be expected to pay an amount that leaves you unable to meet your other financial obligations. Conversely, if you are in a high-income bracket, you will likely pay a large amount of child support but still not to a degree where you pay more than you make. A judge considers several additional criteria when determining child support costs used in conjunction with income brackets. These include:

  • Your child's tuition costs.
  • Any special needs expense.
  • Preexisting child support arrangements from previous relationships.
  • Preexisting debts either parent owes (except gambling debts).
  • Any of your child's recurring medical expenses.

All of these have a chance of altering how much child support the non-custodial parent is expected to pay. Changes in either spouse's circumstances can also lead to renegotiation of the amount later if they are significant enough. These criteria apply to unmarried and divorcing couples alike and will affect your custody arrangements. There are other nuances to custody negotiations, but these are among the most important for any couple.

Learn the Law

Ordinarily, people view child custody negotiations as a part of divorce rather than something unmarried couples need to consider. While child custody is important for divorce proceedings, couples with children might face these negotiations. Breaking up with your significant other can have serious ramifications on how you raise your child, and it is important to ensure a legal agreement is reached.

While a divorce attorney is not necessary for these negotiations, there are child custody attorneys who can guide unmarried couples. Ultimately, there is no significant difference between custody negotiations for divorcing or unmarried couples. The only concern, in either case, is securing an arrangement that benefits the child.

A Child Custody Lawyer

If the words of ABBA are anything to go by, breaking up is never easy, but the effects it can have on children are significant. If you have concerns about how your breakup will affect your ability to raise your children, you might benefit from learning more about family law. Like divorce, child custody is a civil matter that can be extremely complicated.

While unmarried couples are not divorcing, the fact that these negotiations are the same either way means knowledge of divorce law is still beneficial. Learning about certain tactics and scenarios might help protect your interests and your child from an unpleasant or harmful custody arrangement.

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Written By:
Michael Tierney

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