If you are a parent, whether you are married to your partner or not, you are likely to have the same questions about custody: who will have legal custody; where will the child live; and when and how will each parent exercise parenting time with the child. Fortunately, unmarried parents have the same rights – to custody, support, and visitation/parenting time – as married parents, although asserting those rights may require a bit more work.
Legal Custody and Physical Custody
The simple fact of giving birth does not always mean that an unmarried mother enjoys legal custody of her child. (Legal custody means the right to make decisions about major aspects of a child’s life, including education, religious training, and medical care.) Instead, the mother has physical custody, which means that she is the child’s primary caregiver, that is, the child lives with her. In some jurisdictions, legal custody can only be given to a parent pursuant to a court order by a judge, so a parent who wants to establish legal custody must file a petition with the court.
If a woman is married when she conceives or gives birth, her husband is presumed to be the father of her child. Establishing paternity when the child’s father is not married to the mother can be more difficult. If a man agrees to have his name on a child’s birth certificate or signs an acknowledgement of paternity at the time of a child’s birth, it is assumed that he is the father of the child. This acknowledgment will automatically give him an equal ability to bring a proceeding in a court for custody of his child. If the father hasn’t executed an acknowledgement of paternity, he can bring a paternity proceeding to establish that he is the father of the child. If the mother doesn’t contest the proceeding, the court will assume he is the father of the child. If the mother contests the proceeding, the court nevertheless may order blood tests to determine the DNA of the parents and the child. These tests can determine the child’s parentage with more than 99.99% accuracy.
Determining Children’s Best Interests
Once paternity has been established, parents may proceed to negotiate custody. Custody and parenting time/visitation proceedings are brought in family courts. The major consideration in these disputes is the child’s best interests. This term means simply that the court will look at what sort of custody arrangements are most likely to promote the child’s security, happiness, health, and emotional well-being. To make this determination, the court will weigh various issues involving custody. These issues include which parent has been the primary caretaker of the child, whether there are any concerns about the moral character of either parent, and whether either parent has drug or alcohol problems. In addition, the court also will examine the financial situations of the parents, the size and configuration of the parents’ homes, the existence of any support systems to take care of the child if the parents are unavailable, and the child’s preference as to the parent with whom he or she wishes to reside.
Financial arrangements for a child’s care go hand-in-hand with considerations of a child’s best interests. Where parents share legal custody, child support is paid by the non-residential custodial parent to the residential custodial parent. In cases where the parents share physical custody and the child resides with both parents according to a schedule, the usual procedure is for the parent with the greater income level to pay child support to the parent with the lesser income. Whatever the arrangements however, remember that custody and support laws vary from state to state; make sure that you are looking into and securing your rights under the appropriate law.
Elliot Schlissel is an attorney licensed to practice in the State of New York. His law firm, with offices in Nassau County, Suffolk County and Queens County, practices in family law & divorce, criminal law, personal injury matters, bankruptcy, wills & trusts, and foreclosure defense.