All legal parents, biological or adoptive, married or unmarried, have the legal right to physical custody of their children until otherwise ordered by a court. Likewise, all legal parents have a legal responsibility to care for their children, whether they have physical custody of them or not. Here is a short list of frequently asked questions regarding parenting for unmarried couples:
1. When unmarried parents split, how are their parenting rights and responsibilities affected?
A break up will not affect the parenting rights and responsibilities of unmarried legal parents. The separating partners are encouraged to agree upon a parenting plan that will provide a stable environment for their children and significant contact with both parents.
When they cannot come to such an agreement on their own (or through mediation), a court will make that decision for them based on what it believes to be in the best interest of the children.
Typically, when a court gives physical custody of the children to one legal parent, the other will be given visitation rights. Neither custody or visitation may be denied once ordered by a judge.
A nonlegal parent may have no right to child custody or visitation after a breakup. However, the partners may work out an arrangement that allows the nonlegal parent either custody or visitation with the children.
Some states will even allow a court to order visitation for a nonlegal parent if it finds it to be in the children’s best interest.
2. Can a live-in non-parent, do things like sign school permission slips or make medical decisions for a child?
Some people, such as grandparents and other relatives, care for children without the legal authority to do so. But, there are simple forms that parents can fill out to legally authorize a non-parent to make decisions on the child’s behalf in a variety circumstances.
For example, in California, a parent can fill out a Caregiver’s Authorization Affidavit, which will grant a non-parent the authority to register a child in school and make medical decisions on the child’s behalf, without the need to go to court; similar forms are available in other states.
In most situation, if the non-parent will be caring for the child for more than a few months, it will be best for that person to be granted legal guardianship. Otherwise, he or she may encounter problems with some institutions that may be reluctant to accept their authority to make decisions on the child’s behalf.
To find out if your state allows a non-parent to have legal responsibility for a child without being that child’s legal guardian, contact an experienced family law attorney in your state.
3. Are the children of unmarried parents eligible for government benefits?
Yes. All children are entitled to receive government benefits attributed to the child’s biological or adoptive parents. This includes any Social Security, welfare, survivorship, government pension benefits, etc. However, it is extremely important to make sure that any issues regarding the child’s birth certificate and/or paternity are cleared up as soon as the child is born, or shortly thereafter.
4. When a child is born to an unmarried couple, whose last name does the child take?
In most states, there is no restriction on how you can name your baby. There is no requirement for the baby to receive either parent’s last name. This is true for the child’s first and middle names as well. You can name your baby whatever you want and change it later by amending the child’s birth certificate.
5. Which unmarried parent gets to claim their children on their individual tax return?
Unmarried parents are equally entitled to claim the children on their individual tax returns. However, only one parent can do so in any given calendar year.
It’s up to the parents to decide who will get the tax exemption for each year.
Generally, the parent in the highest tax bracket should take the exemption as he or she will enjoy the biggest tax break.
6. Are unmarried couples allowed to adopt?
Yes. While some states prohibit adoption by unmarried individuals petitioning together, the majority of states permit unmarried couples to adopt.
On the other hand, the courts, birth parents, and adoption agencies usually prefer heterosexual married couples.
Unmarried couples must sometimes wait a long time to adopt, and must often be more flexible with regards to the type of child they wish to adopt.
It is often easier for unmarried couples to adopt a child for which it is difficult to find a home, such as an older child or a child with special needs.
7. If a biological parent partners with a non-parent, can the non-parent adopt the child?
Yes. If the couple is not married, this is will be referred to as a second parent or co-parent adoption. Almost half of the states have laws permitting second-parent adoptions.
In states that do not have specific laws permitting second-parent adoptions, courts may still allow them. However, there are a few states––Ohio, Kentucky, Nebraska, and Ohio––that disapprove of second parent adoptions.
If the couple is married, this will be referred to as a stepparent adoption. This typically occurs when the non-parent spouse of a biological parent adopts that parent’s child, either because the other biological parent has died, is estranged from the family, or has remarried.
While it is uncommon for stepparents to formally adopt stepchildren, those who do are afforded the same parental rights and responsibilities as is a biological parent, i.e. the right to child custody and the obligation to pay child support after a divorce.
Stepparent adoptions are generally easier to complete than second-parent adoptions and require less vetting and less money. But, if the child has two living biological parents, consent from both will be needed for a stepparent adoption to be permitted.
In the absence, of consent from both living biological parents, a stepparent adoption will only be permitted if the other biological parent’s parental rights have been terminated for some particular reason.
8. What steps must be taken to ensure that both unmarried parents are considered the legal parents of a child they have together?
Unmarried parents can ensure that they are both considered the legal parents of a child by making sure that both the mother and father’s names are listed on the child’s birth certificate.
If you need to add a name to your child’s birth certificate, contact the Bureau of Vital Statistic in the state where you live.
An unmarried father may be required to sign an affidavit of paternity acknowledging that he is the legal parent of the child. But, it is often advantageous for both mother and father to execute a notarized statement acknowledging the unmarried father’s paternity.
In some states, you may also file this document with your state’s Bureau of Vital Statistics, where it will then act as an official judgment of paternity.