Without taking certain steps, unmarried fathers may have limited child custody rights - and responsibilities. This reality was underscored recently in the case of a man battling for custody of a newborn infant after the baby’s mother, 30, to whom the man was engaged, died of COVID-19 after the child was delivered via emergency C-section.

The legal matter is pending in a South Florida Court. The subject matter is still relevant to unmarried fathers here in New Jersey because of some similarities in legal paternity rights in both states, though there are marked differences as well.

According to local news reports, the couple in question had been together eight years, cohabitating for most of that time. They also have a four-year-old son together. Several years ago, the woman accepted his marriage proposal, but the pair had yet to officially tie the knot. On Valentine’s Day 2021, the 30-year-old woman revealed she was pregnant with their second child - news about which they were reportedly both overjoyed. However, in the later stages of her pregnancy, she was hospitalized from COVID-19. She gave birth in a coma and died a few weeks later, having never reawakened.

The man has been fighting for custody in the two months since. Legally, she has no mother or father. Her mother died before she could be asked the father’s name on the birth certificate. The couple did not file the Florida equivalent of New Jersey’s Certification in Support of Establishing Paternity form. The man has since placed his name on the Putative Father Registry List (something New Jersey doesn’t have) and must wait for a DNA test to verify his claim. Until then, he has no parental rights.

The Putative Father Registry is something established by 23 states (New Jersey isn’t one of them) that allow for voluntary acknowledgement of paternity through forms filed with government offices. These registries don’t automatically imbue custodial rights, but they do allow the man to receive notice of Court proceedings regarding the child, including petitions for adoption or actions to terminate parental rights. Once a father is acknowledged, he can petition for visitation and will usually be compelled to pay child support.

How “Father” is Defined in New Jersey

According to the Pew Research Center, approximately one-third of kids in the U.S. are living with an unmarried parent, a figure that’s doubled since the 1960s.

There are a few situations during which paternity is presumed, per NJ Rev Stat 9:17-43. Those include:

• Being married to the child’s mother AND the child being born during the marriage or within 300 days of divorce, death, or annulment.
• An attempt to get legally married prior to the birth of the child, even if the marriage is later invalidated.
• Cohabitation with the biological mother within 300 days of the child being born. (This one might have been a game-changer in the pending Florida case.)
• The two got married after the birth of the child AND the father acknowledged paternity in writing with the state registrar OR had his name added to the birth certificate OR openly declared the child as his OR was paying child support, either by Court order or voluntary agreement.

These are each considered rebuttable presumptions. As our Monmouth County family law attorneys can explain, that means they will be presumed true, though can be rebutted with clear and convincing evidence.

There are a few instances in which a DNA test might not be the last word in paternity. For example, if the child has already been lawfully adopted by another man, the child’s biological father may not have rights. In a situation like that, it would ultimately be up to the Court to determine which man has the greater claim.

Can Child Custody Be Determined With a Will?

The couple in the Florida case weren’t anticipating the mother’s death, but having an estate plan with a will that clearly names a guardian can help ease the transition if something tragic and unexpected like this occurs.

In most cases where individuals are married or share custody of a child while they’re living, it’s the surviving parent who is granted sole custody if the other dies - regardless of what is stated in the will. But the Courts will take into consideration what’s in the best interests of the child. In the pending Florida case, a valid will and testament by the mother might have given the man guardianship rights to the baby until he could resolve the question of paternity.

A valid will can outline the decedent’s wishes for your childrens’ personal and financial guardianship as well as clear distribution of assets.

For purposes of establishing paternity and parental rights, however, the more straightforward route in New Jersey is probably submission of the Certification in Support of Establishing Paternity form.

If you are concerned about being able to assert your parental rights or compelling another parent to uphold their parental obligations, talking to an experienced Monmouth County family law attorney will help answer many of your questions.

Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.