Rights of Unmarried Parents: What to Know

by Rowan Guthrie
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In 1950, only 1 in 20 children were born to an unmarried mother, but the landscape has changed significantly. As of 2021, the percentage of children born to unmarried women in America averaged 39.2%. Consequently, the rights of unmarried parents have become more complicated than in the days when most parents were likely to be wed.

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Traditionally, fathers' rights regarding their children were linked to their wives. However, due to demographic changes, the rights of unmarried fathers have become more complicated.

Does Either Parent Automatically Get Custody If They Are Unmarried?

In most states, if the parents are unmarried, custody of the child is automatically granted to the mother. In Texas, for example, the unmarried mother has the sole right to make all decisions relating to the child, such as who can see them, unless the father establishes his paternity rights through the courts. Conversely, in Oregon, if paternity is established, both unmarried parents have the same rights as wedded couples. It's also possible to have joint custody, even when the child predominantly resides with one parent.

Family law varies between states regarding custody, but some general principles apply:

  • Presumption of joint legal custody: Family courts often favor joint legal custody, which means both parents are equally involved in decisions affecting their child's welfare. These can include which school they'll attend and which religion they'll follow.
  • Child custody: Courts consider the child's best interests when deciding which parent they physically reside with. Factors in their decision often include the child's age, their relationship with each parent and the parent's ability to provide a stable home environment.
  • Establishing paternity: Being recorded on the birth certificate makes the biological father liable for the child's financial support but doesn't grant them paternal rights. Biological fathers must establish their paternity by filing a Petition to Establish Paternity with the court.
  • Mediation and agreements: Many parents choose to establish their custody and visitation agreements through mediation and negotiation. It's essential to document these agreements and file them with a court to ensure they become legally enforceable.
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Can Unmarried Fathers Access Parental Rights Without Legal Paternity?

The short answer is no. A biological father who wasn't married to the mother when their child was born must legally establish their paternity in family court to assert their paternal rights.

How Is Paternity Established?

Various methods exist for establishing paternity, each with its own legal and practical considerations. Although there are procedural variations between states, all broadly adhere to the same methods of establishing paternity.

Voluntary Acknowledgment of Paternity

If the child's parents are in agreement, they can file a voluntary acknowledgment of paternity affidavit with the court.

Genetic Testing

To confirm a biological relationship between himself and the child, the father can submit a DNA sample. In cases where paternity is disputed by either or both parties, the court may order the father to submit to genetic testing.

Presumption of Paternity

"Marital presumption" is the legal term for the most traditional parentage rights — the man married to the mother when the child is born is its father. The man is also presumed to be the child's father if the child was born within 300 days of the marriage termination. Additionally, if he voluntarily accepts parentage and the mother doesn't dispute this, he is legally the child's father.

Paternity by Estoppel

In some courts, paternity can be established by estoppel. This presumes the man is the father based on the length of time he's raised the child as his own. Consequently, a man who isn't the biological father may be required to financially support a child who has no genetic connection to him.

Establishing paternity can have life-changing implications for the man and the child. There isn't a simple answer applicable nationwide, so it's important to understand the procedure in your state.

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How Do These Rights Change With Same-Sex Couples or in Cases of Adoption?

The parental rights of same-sex couples and those adopting children vary between states. However, some general principles usually apply.

Same-Sex Couples

In a same-sex relationship, if one person is the biological parent of the child, that person has presumptive rights, while the non-biological parent doesn't (unless they've legally adopted the child). The couple can hire an attorney to draft an agreement giving each person equal parenting rights, but there's no guarantee a court will uphold it.

Stepparent Adoption

Those wishing to adopt the biological child of their partner must file a petition to adopt with their spouse. They'll need consent from both of the child's birth parents. Following the petition, standard adoption procedures apply, such as home visits and adoption hearings.

Second-Parent Adoption

Sometimes known as co-parent adoption, this allows the LGBTQ+ second parent to adopt the legal child of their spouse. The second parent submits a petition to adopt that must include background checks and usually a doctor's affidavit relating to the child's conception. Standard adoption procedures typically follow, including home visits.

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