Not everyone who raises children wants to get married, even if they all live together happily under the same roof. But while living together as a married couple can be plenty complicated, especially if you have children, this is often magnified without the legal protections of marriage. But if you educate yourself and plan ahead, many of these complications can be avoided.
Below are some tips for unmarried parents who want to raise children together.
Ensure Both Unmarried Parents' Names Are on the Birth Certificate
One of the best tips for unmarried parents is to include both names on the birth certificate, thus ensuring that they're both the legal parents. This will give each parent legal rights and responsibilities such as custody rights, visitation rights, and child support.
Any child born to a married, opposite-sex couple is legally presumed to be the child of the husband. But when the parents are unmarried, there's no such presumption. Therefore, most states require unmarried fathers to sign an affidavit acknowledging their paternity. It's best that both parents sign and notarize a written statement acknowledging the unmarried father's paternity.
Your state's Bureau of Vital Statistics keeps records of all birth certificates. Check with your own state's bureau to make sure that your paternity affidavit is on file, which also is where you'll go to add a parent to your child's birth certificate.
Choose a Last Name of Your Liking
Most states allow any name to be placed 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 the two names can be hyphenated -- as the parents see fit.
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 deciding, you can decide first and amend your child's birth certificate later through your state's Bureau of Vital Statistics.
Qualify Your Child for Eligible Government Benefits
As long as your name is included on the child's birth certificate, your biological and legal children are eligible for government benefits, like 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 made simple through the birth certificate and/or paternity affidavit at the time of, or shortly after, your child's birth.
Unmarried Parents Adopting a Child
Most states allow unmarried parents to adopt children; however, this does not keep adoption agencies and social services from discriminating against unmarried couples. 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.
Adopting Your Partner's Child, When You're Not One of the Biological Parents
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 -- 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:
- Both of the child's legal parents consent
- The noncustodial parent is deceased
- The noncustodial parent has been deemed "unfit" by a court
- The noncustodial parent has abandoned the child
Social services will determine whether a parent has abandoned the child or is unfit. If the noncustodial parent has paid support, maintained a relationship with the child, and in the case of the father, has signed a paternity affidavit, 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.
Claiming Children on Tax Forms
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.
A Non-Parent Playing a Live-In Parental Role
Many times issues arise when a nonparent who is living with the child and acts as that child's parent regarding educational and medical decisions. The legality of this nonparent's authority to do this depends on several factors.
- If the other legal parent is in the picture and shares joint legal custody, then he or she probably has priority to make medical decisions over the nonparent. This, of course, does not preclude the nonparent from being listed as the emergency contact person on important records, in case a legal parent is unavailable.
- Since schools are legally liable for the safety and care of the children, they can only accept signatures and permission slips from the children's legal guardians. An unmarried partner of a legal parent probably does not qualify as a legal guardian.
- Nonparents may be permitted to pick up children from school if a legal parent informs the school.
Contact your child's school and other authorities to find out what procedures are necessary to give nonparents their decision-making rights.
The Break-Up of Unmarried Parents: Parental Rights and Duties
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, he or she cannot deprive the other of his or her visitation rights. If a parent fails to fulfill his or her parental duties, the court can terminate that parent's right to be considered a legal parent. The noncustodial parent must continue to be involved in the child's life through visitation and child support.
If an unmarried partner is not a legal parent of the child, they probably have no rights to even visit the child. However, unmarried partners can enter into a written agreement if they both want to a part of the child's life. This agreement should include visitation and support.
If an agreement can't be made and the nonparent wants to pursue rights in court, the outcome will be based on state law.
A best interest of the child standard is typically used, and thus, some states do grant visitation or custody to nonparents. However, many states, even though they may follow the best interest of the child standard, still favor the parents over nonparents. Check your own state's laws and consult an experienced family law attorney for answers and guidance to your situation.
Unmarried Parents Raising Children Together? Get Help With Your Legal Questions
If you still have questions or concerns after reading these tips for unmarried parents, you may need professional help. Whether planning for the future, or dealing with issues that have already arisen, getting professional legal help is a good first step in ensuring you have a voice in the important decisions impacting your child. Find a family law attorney near you today to learn more.