Over the last several decades, the United States has seen a growth in the number of births to unmarried couples. Today, 40% of all children born are born to unmarried parents, up from 18.7% in 2007.
In part, this increase is attributable to a growth in non-marital births within cohabitating unions.
National surveys indicate that from 2006-2010, more than half (58%) of all nonmarital births occurred within cohabitating unions. Regardless of whether the child’s unmarried parents are living separate or apart, however, unwed fathers should be aware of the potential legal issues that may arise.
So what are the legal implications of fatherhood when the father is not married to the mother of the child?
Paternity
If you’re married to the mother, there is a legal presumption that the husband is the father of the baby. Without that marital relationship, however, there is no legal presumption of paternity, and without paternity, an unwed father has no legal standing to visitation or custody.
The most common way for unwed fathers to establish paternity is to be named as the father on the child’s birth certificate. This can be done at the hospital when the baby is born, or by completing a Voluntary Acknowledgement of Paternity Form, which can be obtained through the Pennsylvania Department of Human Services. If the child’s mother will not agree to the purported father’s paternity, he can petition the court to establish his paternity. The father will need to be prepared to take a paternity test to prove his parental status.
Gaining Custody Rights
A man who has established paternity of a child has the same custody rights as a married father. If the unwed mother and father are cohabitating, custody is not an issue. However, if they separate, custody arrangements and rights must be established.
Pennsylvania recognizes two distinct types of child custody: physical and legal. Physical custody refers to a parent’s rights to have the child reside with him or her and provide day to day care for the child. Legal custody refers to a parent’s right to make major decisions regarding the child, such as the child’s healthcare, education, and religion. Custody arrangements can vary among joint or sole physical custody and joint or sole legal custody. A parent may also have shared legal custody but only rights to visitation with the child.
Some parents are able to agree to a custody arrangement between them, outside of the court system. However, if that isn’t possible, in order to protect parental rights, father may need to retain a family law attorney to seek an official, enforceable court order that details the custody rights and arrangement. Even if mother and father are able to agree on a custody arrangement, they may want to have the agreement approved by the court. Doing so may help ensure future compliance with the agreement in the event that the relationship between the parents deteriorates.
If the parties seek court involvement, are fathers at a disadvantage throughout the custody litigation? In Pennsylvania, there has been a movement away from the presumption that a child should remain with his or her mother unless her custody would be detrimental to the child. With the enactment of the 2011 Child Custody Act, courts are required to consider sixteen different factors when determining custody. Those factors include the environment and support that each parent can provide, including support of extended family, whether there is any history of drug/alcohol abuse, whether each parent encourages contact between the child and the other parent, and whether each parent performs parental duties likely to meet the child’s physical, emotional, developmental, and educational needs.
Paying Child Support
Regardless of a father’s custody status, he has a financial responsibility to support his child. If mother and father cohabitate, they informally agree upon child support. If they separate, however, and cannot establish an informal child support agreement, either party may seek a child support order from the court.
Pennsylvania courts determine child support awards based upon several factors. A court will look at the mother’s individual income level and obligations in comparison to the father’s individual income level and obligations. It will also consider the availability of other financial support and the specific needs of the child. Once child support is determined, it is a financial obligation that can be enforced by the court system; failure to pay can result in imprisonment. A child support order can always be revisited, too, if the parties’ circumstances change (e.g., disability, unemployment).
Whether married or unmarried, fathers have a legal obligation and rights to their children. However, when parents are not legally married, establishing parental rights and responsibilities can become more complicated. Unmarried fathers should take steps to ensure that they are meeting their parental obligations and protecting their custodial rights, and, where appropriate, seek legal guidance from a qualified attorney to help guide them.
Lehigh Valley Family Law is a publication of KingSpry’s Family Law Practice Group. It is meant to be informational and does not constitute legal advice.
