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New Jersey Child Custody Rights for Unmarried Parents

Child Custody

In New Jersey, child custody rights are the same regardless of whether the parents are or were married. That means that issues pertaining to child custody, child support and parenting time are going to be weighed the same way they would be for divorcing parents.

Still, our Somerset County child custody attorneys recognize there could be some unique challenges unmarried parents (fathers in particular) face when seeking to assert their parental rights. These matters are not unscalable, but resolution might require additional steps, including establishing paternity and/or legal parenthood.

Our law firm represents unmarried parents throughout New Jersey in reaching child custody and child support solutions that are workable and beneficial for all involved.

Establishing an Unmarried Father’s Paternity

One of the most common issues in child custody cases involving unmarried parents is the question of paternity. While unmarried mothers are presumed to be the child’s biological parent, unmarried fathers are not.

If the parents are unmarried, the mother can legally keep the child from the father – and the father can legally deny child support payments - unless both parents voluntarily acknowledge paternity at the time of birth OR one of them files a complaint with the court to establish paternity to begin child custody/child support proceedings.

Paternity is the state of legal fatherhood, and it is how a biological father becomes the legal father of a child if he is not married to that child’s mother.

For unmarried couples, paternity can be established at birth – assuming both parents agree and are willing to put it in writing. If that’s the case, they sign a document called a Certificate of Parentage (sometimes informally referred to as an “acknowledgement of paternity”). Both parents must:

  • Meet with a birth certificate coordinator to review the certificate.
  • Present valid identification.
  • Complete the certificate.
  • Sign the certificate in the presence of a birth certificate coordinator serving as a witness.

When this form is signed by both the father and the mother, the father’s name can go on the birth certificate, and he is granted all the same parental obligations and rights as a father who was married to the child’s mother at the time of the child’s birth.

If this process wasn’t done at the hospital, it can be done later at the local registrar’s office. However, if it wasn’t done at all, the parent seeking to establish paternity can request a court-ordered paternity test, which proves or disproves parentage via DNA sample. (On the other hand, a husband is legally presumed the father of a child born in wedlock – automatically placed on the birth certificate – unless he fills out a form called an Affidavit of Denial arguing that he is not.)

Note that if we are talking about same-sex unmarried couples, any non-biological parents will need to show legal parentage through adoption. A domestic partnership, civil union or even a marriage (will not be adequate grounds to assert parental rights and fight for child custody. The only situation wherein you may have parental rights without adoption of a non-biological child, per the 2017 U.S. Supreme Court ruling in Pavan et al v. Smith, is if you were married at the time the time your spouse gave birth to a child. (The court in Pavan held that having chosen to make birth certificates more than mere markers of biological relationships and to use them to give married parents a form of legal recognition not available to unmarried parents, the state could not deny married same-sex couples the same recognition.)

Seeking Child Custody After Establishing Paternity

It is only after paternity is established that unmarried parents are considered to have equal child custody rights and can shift their focus to the type and schedule of child custody and child support.

Note that there are two basic types of custody: Legal and physical. Legal custody refers to decision-making authority. Physical custody refers to where the child lives. Many parents share custody, which is categorized as either joint legal custody (one parent is where the child primarily resides) and joint custody (where the child lives with both parents on an approximately 50/50 basis). There is also parenting time, which is sometimes referred to as “visitation,” which is the schedule by which the non-custodial parent has time with their child.

In some respects, Somerset, New Jersey child custody cases involving unmarried parents are less complicated than those involving divorcing parents – because there are fewer issues to resolve. There is no division of property, determining who owns what or whether alimony should be paid. The only questions to be answered pertain to the child and what is in their best interests. Whatever your situation, we can help.

Contact us at (732) 810-0034 or email us through our website.

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