Roughly 4 in 10 children in the U.S. are born to parents who are not married, a significant increase since the 1960s that the Brookings Institute attributes largely to the decline of “shotgun marriages.” Whatever the reason, the fact is that it can result in some unique challenges in child custody cases, although there are numerous similarities to the issues raised in cases of once-married parents. Our experienced East Brunswick child custody lawyers can help no matter what your situation.

Establishing Paternity

One of the first issues that may arise is paternity. NJ Rev Stat 9:17-43 outlines numerous rebuttable presumptions regarding paternity. A man is generally presumed to be the biological father of a child if:

• He and the child’s mother are or were married to each other and the child was born during the marriage or within 300 days of the marriage’s termination by death, divorce or annulment.
• He tried in compliance with the law to marry the child’s biological mother prior to the child’s birth, even if that marriage was later declared invalid.
• He cohabited with the child’s biological mother within 300 days (10 months) of the child’s birth.
• He and the child’s mother married or attempted to marry in compliance with the law after the child’s birth and he acknowledged paternity in writing with the local registrar of vital statistics or he sought to have his name placed on the child’s birth certificate or openly holds out the child as his own or is obligated to support the child under written voluntary agreement or Court order.
• He receives the minor child into his home and openly holds out the child as his own.
• He provides support for the minor child and openly holds out the child as his own.
• He acknowledges paternity in writing to the local registrar of vital statistics and the mother, notified of this, doesn’t dispute it within a reasonable time frame.

Any of these presumptions can be rebutted, but only with clear and convincing evidence to the contrary. A DNA test would be considered clear and convincing evidence, but it’s not always the only thing that matters. When two or more conflicting presumptions arise, the Court will decide which is weightier. For example, if a child was legally adopted by another man, the biological father may not be able to successfully assert his parental rights.

Courts can compel the parties involved to submit to a Court-ordered paternity test at either party’s request. Paternity will need to be established before the Court addresses any other matter of dispute such as child custody, parenting time or child support.

Note that prior to birth, unmarried fathers do not have parental rights - or responsibilities. It’s a good idea if you question the paternity of an unborn child to consult with a family law attorney before providing support, making promises or signing a birth certificate. If you are a mother and the father of your child is denying paternity, you too should consult with your own lawyer to discuss your next steps.

After the child is born to an unwed mother, there is also the presumption that the mother has sole rights unless/until the father’s paternity is established. The Courts require fathers to acknowledge their parenthood before they can demand parental rights under the law.

Custody Agreements After Cohabitation

A couple who previously lived together and split up after the child is born may find their challenges are pretty similar to those of divorcing parents. A father whose name is on the birth certificate will have the same custody rights and support responsibilities as the mother.

Many couples who previously lived together but were not married may be tempted to work out an informal custody, parenting time and support arrangement with each other without formalizing it with a Court order. This can work for some co-parents - and in fact, we encourage parents to reach agreements on these issues on their own if they can - but it’s important to understand that unless the Court approves the agreement, it is not enforceable. The same, of course, is true for divorcing parents.

Custodial Rights of Fathers

Some fathers are concerned that if they were never previously married to their child’s mother that they may not have custodial rights when the relationship ends. Although custody and parenting time arrangements do need to be approved by a Court to be enforceable, unmarried fathers will not lose their parental rights simply because they weren’t married to the child’s mother prior to birth or at all.

Courts generally recognize that it’s in the best interests of the child to have both parents actively involved and supportive. Some of the factors the Courts consider in weighing custody and parenting time issues include the child’s age, how many kids are in each home, the physical location of the kids and parents, the fitness of each parent, the existing relationship each parent had with the child prior to separation and any special needs the child has. Understand that if you move far away from the child, it may impact child custody and parenting arrangements, but this is the same for parents who were previously married. It will come down to what is in the best interests of the child.

Just like parents who were previously married, unmarried parents will need the help of a lawyer to protect their rights and the best interests of their child.