By Jade Yeban, J.D. | Legally reviewed by Aisha Success, Esq. | Last reviewed June 05, 2023
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Not all couples want to get married. Even if the couple has children together or lives under the same roof, they may choose not to get married. After all, marriage is complicated. But, not being married to your significant other can present other challenges. This is especially true when there are children. If you plan, you can avoid many of these challenges.
Below are some tips for unmarried parents who want to raise children together.
One of the best tips for unmarried parents is to include both names on the birth certificate. In most states, adding the father's name to the certificate will help establish legal paternity or paternal rights. Legal parentage gives the father rights to custody and visitation. Visitation is also known as parenting time. In some states, the name alone will not guarantee such rights. Parents' legal rights and responsibilities include custody rights, visitation rights, and child support obligations.
Any child born to a married, opposite-sex couple is legally presumed to be the child of the husband. But when they are not married parents, there's no such presumption. Most states require unmarried fathers to sign an affidavit acknowledging their paternity. Both parents should sign and notarize a written statement acknowledging the father's paternity.
An affidavit alone won't suffice in establishing paternal rights. The couple will still need a judgment of paternity entered into by the court. Courts will enter the judgment if the affidavit is signed. The child's mother must also agree that the person is the child's father. In some instances, the mother might want a DNA test to prove paternity before she signs the affidavit.
Your state's Bureau of Vital Statistics keeps records of all birth certificates. Check with your own state's bureau to see if they keep paternity affidavits, and if so, yours is on file. Some states, like Kentucky, require a certified court order to change the father on the birth certificate.
Most states allow any name to go on a child's birth certificate. This includes first, middle, and last names. The child doesn't have to take either of the parents' names but can take one or the other. Or, you can hyphenate the two names. Some parents even give one parent's last name as the child's middle name and the other parent's last name as the child's last name.
If you need a little more time to decide, you can amend your child's birth certificate later. You can do this through your state's Bureau of Vital Statistics. You should note that this can be a complicated process. Generally, if you want to change your child's name or even amend an incorrect spelling of a name, the state will want a court order. This can be frustrating and time-consuming.
As long as your name is on the child's birth certificate, your biological and legal children are eligible for government benefits. This includes Social Security survivorship benefits, government pension, etc. If your name isn't included on the birth certificate, your child might still be eligible for benefits. But, they'll face the hassles of proving paternity.
The key is proving paternity to the government agency, which is simpler through the birth certificate and/or paternity affidavit at the time of, or shortly after, your child's birth.
All states allow single parents to adopt through a process called "single-parent adoption." Being married is not a prerequisite to adoption. But, being an unmarried couple and adopting a child jointly may cause issues that even single parents do not face when adopting. Some states do allow unmarried couples to adopt, but it is the most uncommon form of adoption.
If you are an unmarried couple trying to adopt a child, you may face more scrutiny from prospective birth mothers and adoption agencies. If you and your partner aren't married, you may have to do more work to prove to social services and government agencies that your home is stable enough to raise children.
When an unmarried couple adopts a child jointly, they're both the child's legal parents, with equal rights and responsibilities to the child. This is true even if the unmarried parents separate, in which case each parent has a right to ask the family court for custody, visitation, and child support from the other parent.
When someone who's not a biological parent adopts their partner's child, this is called a "second-parent adoption." These are most common in stepparent-stepchild scenarios. States also grant second-parent adoptions when a same-sex partner adopts their partner's child. This is a common way for same-sex couples to raise families.
Second-parent adoptions, where the adopting parent is married to one of the biological parents, are commonly approved. The courts favor situations where the adopting couple is legally married, and the child will continue living with the couple. Courts view such adoptions as improving the structure of the family and, thus, favor second-parent adoptions. Second-parent adoptions by unmarried couples are less favored.
Unless parents have been deemed "unfit" by some legal process or have abandoned their child, they have a right to parent their own child. Because of this, second-parent adoptions cannot be granted unless one of the following applies:
Social services will initially determine whether a parent has abandoned the child or is unfit, and then may seek to have the noncustodial parent's rights terminated. If the noncustodial parent has paid support and maintained a relationship with the child, that parent must give consent before a second-parent adoption can be approved.
Once a second-parent adoption is successful, the adoptive parent has the same rights and duties as a biological parent. This means that if the couple ever separates, the adoptive parent has custody and visitation rights and a duty to support the child.
Only one parent can claim the children as dependents on their taxes if the parents are unmarried. Either unmarried parent is entitled to the exemption so long as they support the child.
Typically, the best way to decide which parent should claim the child is to determine which parent has the higher income. The parent with the higher income will receive a bigger tax break. The parents can agree to split the tax return, even though only one parent is receiving it.
If the parents do not agree, they can complete a form (Form 8332) with the Internal Revenue Service (IRS) to claim their child for exemption on their taxes. If you have questions about your taxes, you should connect with a tax professional or tax attorney to help you navigate your taxes.
Many times, issues arise when a nonparent, who is living with the child, acts as that child's parent regarding certain decisions. The legality of this nonparent's authority to do this depends on several factors:
Contact your child's school to find out what procedures are necessary to allow nonparents to be involved in making some decisions.
If both parents are legal parents, biologically or through adoption, they each have an equal right to pursue custody. Neither parent can deprive the other of this right. Once one of the parents is granted custody, they cannot deprive the other of their visitation rights.
The noncustodial parent must continue to be involved in the child's life through visitation and child support. Child support payments are a critical part of ensuring financial support for the child. These are typically mandated by a court and are based on the parents' income, the child's needs, and the custody arrangement.
A co-parenting plan can be developed to outline how you and the other parent will care for the child. This includes parenting time, decision-making responsibilities, and communication guidelines. The main goal is to prioritize the child's well-being and maintain a stable environment for them.
If an unmarried partner is not a legal parent of the child, they probably have no right to visit the child. Unmarried partners can enter into a written agreement if they both want to be a part of the child's life. This agreement could include visitation and support. But it is important to know that such an agreement may not be upheld in court.
If an agreement can't be made and the nonparent wants to pursue rights in court, the outcome will be based on state law. Unless the legal parent is deemed to be unfit, the court will favor the parents over the nonparents. In very limited circumstances, some states do grant some form of visitation to nonparents if it is found to be in the best interests of the child. Check your own state's laws and consult an experienced family law attorney for answers and guidance to your situation.
If you still have questions or concerns after reading these tips for unmarried parents, you may need professional help. Getting professional legal help is a good first step to ensure you have a voice in the process.
Lawyers can provide valuable legal advice about parental rights and child custody issues related to physical custody or sole custody. They can help you negotiate a custody arrangement or parenting plan. Attorneys will help represent you in family court until you receive a final custody order.
Find a family law attorney near you today to learn more.
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