Parental Rights of Unmarried Parents

Child custody, child support and establishing parenting time are frequently complicated and contentious when married parents go through a divorce.  When parents are not married, those issues surrounding parental rights often become even more problematic.  If the parents are not married, custody of the child is awarded to the mother immediately.  However, a father has rights to pursue through legal proceedings.

Parental Rights of the Mother

Unmarried mothers are granted primary rights to custody of the child.  As a result, she has the authority to make all decisions regarding her child.  Unless this changes by agreement of the parents or a court order, the child resides with the mother.  The mother makes all decisions about the child’s schooling and where the child receives child care.  She makes all health care decisions, including what doctor and dentists the child sees.  The mother decides what therapy the child receives (if any).  She determines any vacation and travel plans.  She decides what sports the child may participate in, what summer camps the child attends and what other extracurricular activities the child pursues.  The mother determines whether to raise the child in a given religion.

Parental Rights of the Father

In a best-case situation, when a father wants to be in the life of his child, the parents work out shared custody or a parenting schedule.  However, often this is not the case and things quickly become complicated.

The father in these cases must first establish paternity.  This is easiest if the father is listed on the birth certificate.  In the state of Maryland, the parties execute a written document, called an Affidavit of Parentage to establish a father’s parental rights.

Affidavit of Parentage

Frequently, parents execute an Affidavit of Parentage while the mother and child are still in the hospital.  This results in the father’s name appearing on the birth certificate.  Before leaving the hospital, the hospital staff can help the parents complete the form.  In those situations, the staff acts as witnesses to the signing of the document.  The parents provide identification and Social Security numbers.  When the parents complete the form in the hospital, the hospital staff forwards the Affidavit of Parentage to the Division of Vital Records.

This form can also be completed after the mother and child return home.  In that case, the parties complete and sign the form in the presence of a notary.  Next, the parties send the form to the Division of Vital Records.

Signing the Affidavit of Paternity is the choice of the parties.  Once signed, courts consider the document legally binding establishing paternity.  The mother should not execute the Affidavit unless she is certain only one person can be the potential father of the child.  The potential father has the right to request a genetic test or consult with an attorney before signing the Affidavit.

The parties signing the Affidavit of Paternity may be under the age of eighteen.  Parties under the age of eighteen often discuss the matter with a parent or legal guardian before signing the Affidavit.

Rescinding an Affidavit of Parentage

It is possible to rescind an Affidavit of Parentage.  This is accomplished when either party completes a Rescission Form for Affidavit of Parentage within 60 days of the signing of the Affidavit of Parentage. Generally, courts do not accept rescission documents after 60 days have passed.  After 60 days passed, the Affidavit can only be nullified by a court order if the court finds fraud, duress or material mistake of fact.

Other Ways of Establishing Parentage

If the parties do not execute an Affidavit of Parentage, either party or the State of Maryland may bring a legal action to establish paternity.  This action often includes genetic testing of the parties to assist in establishing the identity of the parents of the child.  A potential father must participate even if he does not believe he is the father of the child or he has proof that he is not the father.

After the man is legally established as the child’s father, he has the same rights as any father.  The father may petition the court for legal custody of the child.  At the same time, the father often seeks to establish parenting time.  The father must show the court that he is a suitable parent and capable of taking on custodial responsibilities.  The court considers the father’s relationship with the child, if any, and the father’s lifestyle.  After paternity is established the court may also consider child support.

Child Support

Both parents must financially provide for their children, regardless of marital status.  The court considers the income and legal responsibilities of the parties and the needs of the child and determines any child support award.  The parent ordered to pay child support may ask a court to re-evaluate a child support award if that parent’s financial situation changes, including the result of a job loss.

Courts order support if the child spends the majority of his or her time with one parent.

Unmarried Parents Have Rights and Responsibilities

Even in situations where the parties were never married, both parents have rights and responsibilities.  When the parties agree on how to go forward, resolutions don’t require the approval of the court.  Similar to a divorce, the court will ultimately decide any issues that the parents cannot resolve.

If You are Seeking to Establish Paternity

If you are seeking to establish paternity of your child, and want parenting time as well, a family law attorney can help guide you through the process.  Contact the lawyers at Fait & DiLima to discuss the facts of your case.  Our lawyers practice exclusively in family law.  We can help you establish parental rights and parenting time with your child.



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