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Child Custody | Family

How Does Child Custody Work for Unmarried Couples?

9 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

Child custody can be a confusing topic, especially for unmarried parents. Understanding how child custody works for unmarried parents is essential before you begin the child custody process. 

Child custody for unmarried couples only differs from child custody for married couples when the unmarried father has not yet established paternity. Otherwise, it is the same child custody process that divorcing parents go through. All child custody rulings (regardless of marital status) are determined by what’s in the child’s best interest. 

Child custody cases can be complex, drawn-out, and highly contentious. If you are an unmarried parent fighting for custodial rights of your child, it is recommended that you first consult with a proven child custody lawyer. We can put you in touch today with a local child custody lawyer to help you obtain custody of your child. Learn more about how child custody works for unmarried couples below. 

How is Custody Determined Between Unmarried Couples? 

Unmarried couples mostly go through the same child custody process as divorcing couples. Unmarried parents face similar obstacles and tough decisions that married parents face during child custody proceedings. 

Differences between the two designations typically arise if paternity has not been established. In this case, some states have family laws that give an unmarried mother sole-custody of the child until paternity has been established and the case is ruled on by a judge. 

In general, a family court judge will take into account each parent’s involvement in the child’s life, who is the current primary caretaker, past abuse or drug issues, financial resources, the ability to care for the child, evidence, testimony, professional recommendations, etc. before making a final ruling on child custody. 

Rights of Unmarried Fathers

Married couples have naturally endowed custodial rights to their children. However, the process of obtaining custodial and visitation rights for an unmarried father is not always as cut and dry. Learn more about the custodial rights of unmarried fathers below. 

Fathers That Have Not Established Paternity

In most states, fathers that have not established paternity have no custody or visitation rights until paternity is proven. Unmarried fathers can establish paternity a few ways (depending on the state and circumstances) to include: 

  • Sign a Declaration of Paternity (sometimes called an Acknowledgement of Paternity) when the child is born. Fathers that sign this document can be placed on the birth certificate. 
  • Complete an affidavit of paternity after the child has been born (up until the age of 18). If completed after the birth of the child, parents can still have the birth certificate altered to reflect paternity. 
  • Complete a DNA test. This is typically done if either parent doubts paternity. If an unmarried father refused to voluntarily submit to a DNA test, a judge can court-order one. 

Fathers That Have Established Paternity

Father’s that have established paternity have the same custodial and visitation rights to their child as a married father does (after the court has made a final ruling). However, if the unmarried father was not living with the mother and child, they can be at a disadvantage if they are seeking full or shared custody. 

Are Mothers Automatically Awarded Sole Custody? 

In the past, family court judges leaned more towards awarding sole-custody to a mother during child custody hearings. However, in the last few decades, things have changed. Courts view mothers and fathers equally when ruling on child custody cases (so long as paternity is established). 

Regardless of sex, a family court judge is only interested in what’s in the best interest of the child. Judges take into account evidence presented, professional opinions, testimony, and each parent’s overall ability to take care of the child before making a final ruling. 

Parenting Agreements for Unmarried Couples

The parenting plan is the bedrock of child custody agreements and rulings. A parenting plan consists of rules, procedures, visitation schedules, etc. that each parent must follow. Neglecting to follow the rules of a parenting agreement can result in criminal charges and other negative consequences. 

If you can agree on the parameters of a parenting plan before going to court, it can save you time, money and stress. Parenting plans typically contain the following types of information:

  • Custodial agreement (sole custody, joint custody, etc)
  • Visitation schedule (including vacations, holidays, and other special occasions)
  • Communication rules and procedures
  • Each parent’s responsibilities
  • How changes should occur
  • Conflict resolution strategies
  • How the child will be exchanged

Each parental plan is unique. Parents can include topics such as medical treatment, religion, extra-curricular activities, etc. Working with a child custody lawyer can help you to draft a parenting plan that is in the best interest of your child and negotiate with your ex to create an agreement that works for all parties involved. 

How Does Child Support Work For Unmarried Couples?

Child support works the same for unmarried couples as it does for married parents. In general, the non-custodial parent must pay child support to their ex until the child turns 18. Every state doesn’t calculate child support rates the same. Check your state laws or with your child custody lawyer to understand how your state approaches child support. 

It is important that unmarried couples secure a child custody order quickly after they separate. Otherwise, an unmarried father may be subjected to default child support and custody provisions. These provisions can sometimes be harsh, expensive, and not good for any party involved. 

What if the Agreement Doesn’t Work – Can We Change It?

Fortunately, final rulings on child custody agreements can be changed. Most judges prefer to wait for 1 – 2 years before making modifications. This is to gauge how well the original plan is working and to provide the child with some type of stability. 

In general, family courts require parents requesting a modification of child custody to prove there has been a substantial change in circumstances and the requested changes are in the child’s best interest. In most cases, deliberate changes caused by parents are not considered substantial changes in circumstances. 

Furthermore, parents can include provisions for making changes to their custody agreement within the original document. In the case of emergency situations, parents may have the option to have the custody order temporarily changed while a full hearing and investigation takes place. 

We Agree On a Parenting Plan, Do We Still Have to go to Court?

Custodial agreements that are not approved by a judge can’t be legally enforced. If there are disagreements, one parent doesn’t fulfill their duties, etc. the family court will have a limited ability to enforce unapproved agreements. 

Unmarried parents that can draft a parenting plan via informal negotiation such as mediation may only have to go to court to receive a judge’s approval. It may be tempting to bypass the legal system, but it can have detrimental short and long-term consequences for you and your children. 

How To File For Custody 

Before filing for child custody, it is imperative that you conduct independent research on the child custody laws in your states. Afterward, contact the clerk’s office of the family court that presides over your case. They will provide you with information regarding what forms you need, where to get them, and where to file. 

It is important to note that the clerk’s office cannot provide legal counsel. If you are unsure of how child custody laws specifically impact your case, it is in your best interest to connect with an experienced family law attorney.

After you have completed the paperwork, you are required to file it with the clerk’s office and pay all applicable fees. At this time, you may be given an initial hearing date. Most states require the parent filing for custody to serve the documents to their co-parent within a specific number of days. 

Do I Need a Child Custody Lawyer?

Technically, no. Unmarried parents do not need a child custody lawyer to file for custody of their children. However, an adept attorney can significantly increase your likelihood of a favorable outcome that is in the best interest of your child and fair to you. Child custody lawyers can provide many benefits such as:

  • Advocating for you during mediation, disputes, and hearings
  • Negotiate parental plans and child support
  • Represent you in court
  • Help you to avoid mistakes when completing paperwork
  • Interpret child custody laws and apply them to your case

How Much Does a Child Custody Lawyer Cost?

Though the benefits of hiring a child custody lawyer are clear, many parents still opt against legal representation because they simply can’t afford the costs. The average family law attorney’s upfront rates start at $3k – $5k, and they charge an additional $300 – $500 per hour on top of that. 

Needless to say, many people can’t afford these rates. Fortunately, there are ways to save money on legal fees. One of the most effective methods is to build a good relationship with your ex. A better relationship may facilitate more cooperation. This can lead to drafting a plan on your own and potentially skipping a drawn-out and contentious child custody hearing. 

Additionally, parents that seek to save thousands of dollars in upfront fees have increasingly begun searching for other ways to hire an affordable lawyer such as hiring an unbundled attorney. Learn how you can save money on legal fees with unbundled legal services below. 

Save Money With an Unbundled Lawyer Today 

The typical child custody lawyer has such high fees because they take care of every part of your child custody case when you agree to work with them. With unbundled legal help, you can hire a child custody lawyer to handle some parts of your case, while you take care of the rest. 

This can result in saving thousands of dollars in upfront legal fees. An unbundled attorney can help you with your case for as low as $500 – $1500. If your case is more complex, our network of unbundled attorneys offer fair and affordable pricing for full-representation. 

To learn if your child custody case is a good fit to be unbundled, we can put you in contact today with an unbundled attorney to discuss your case

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