Unmarried Parents: Paternity & Custody

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Can one parent keep a child from the other parent without court orders? What are the custody laws for unmarried parents? Can a mother withhold a child from the father? What rights do unmarried fathers have? WARNING: This video and page discusses paternity law in general, not applicable in any particular state. For a Tennessee specific discussion on paternity, see Unmarried Parents in Tennessee Paternity & Custody.

For more details, see Mason’s article published in the Tennessee Bar Journal, “You Are the Father! Untangling Custody Rights in Tennessee Between Unmarried Parents.”  

Are you an unmarried parent?

You have rights and so does your child. A child born out-of-wedlock has:

• The right to support;
• The right to have both parents on the birth certificate; and
• The right to inherit from one or more parents.

What rights do unmarried fathers have?

Unmarried fathers have no parental or custodial rights until paternity is established. A man claiming to be the biological parent is called a “putative father” or “alleged father.”  To have visitation rights a father can enforce in the event of a dispute, fathers should obtain a court order specifically listing those dates and times.

That’s where we begin.

In this video, we explain the basic legal concepts and general requirements of paternity, legitimation, parentage, custody, and child support. Every state has specific legal terms which can have subtle but important differences. We won’t be discussing the laws of any particular state.  Instead, we’ll give you a foundation on which to build. There can be exceptions to what is discussed here.  And exceptions to exceptions.  We also will not be talking about same sex parenting involving assisted reproduction technology or surrogacy agreements.  Please obtain specific information from an experienced family lawyer where you live.

Be prepared.  This area of law is a legal minefield!  Some aspects may not seem to make any sense at all.  Keep in mind, we are not discussing, or commenting on, what laws should be – fair or not fair.

Let’s get started.

We have 3 important legal proceedings to discuss:

• Paternity Establishment (legitimation);
• Child Custody; and
• Child Support.

Several steps tie those proceedings together:

1. Genetic testing proves the man is the biological father.
2. The biological father is named on the child’s birth certificate.
3. Paternity is established according to law. (Paternity is fatherhood.)
4. The man is declared the legal father.
5. The legal father sues for custody or visitation.
6. The court determines custody.
7. The court establishes child support.

We’ll anticipate and answer many of your questions as we go along.

How is paternity established?

For unwed parents, proving fatherhood requires establishing paternity in a specific way required by law. The court doesn’t grant custody to a self-proclaimed father who has yet to prove he’s the biological parent. For all the pieces to fall into place, paternity must be established first. Then, as the legal father, he has standing to sue for custody with parenting time or visitation.

What Happens if the Fathers Name is not on the Birth Certificate?

If a father’s name is not on the birth certificate, paternity should be established.  There are three ways for the alleged father not named on the child’s birth certificate to establish paternity:

1. He can voluntarily acknowledge paternity.

Many states call this “VAP.”  The VAP program avoids court intervention and is the easiest method.  Maybe too easy.

2. He can join the mother in an agreement to establish parentage.

Their agreement is filed with the court. The judge typically has discretion to order genetic testing and probably will.

3. He can file a complaint to establish parentage.

This is a lawsuit so genetic testing is ordered.  The mother, minor child, or department of child services can also file a paternity lawsuit.

Whether you use the VAP process, file an agreement, or petition the court to establish paternity, DNA testing is essential. Test twice for certainty.

How Do Voluntary Acknowledgment of Paternity or VAP Programs Work?

Most states have VAP programs allowing unmarried parents to legitimize their offspring. Some states have voluntary acknowledgment of parentage programs for LGBTQ and non-genetic parents. The VAP alone does not vest custody or visitation rights or establish child support. But it’s a big step in the right direction.

Many unmarried parents acknowledge paternity at the hospital when the child is born. Others do so later at the vital records office, health department, or child support office.

Acknowledging paternity at the hospital is not always recommended. Unless prenatal DNA testing was done and the alleged father is indeed a genetic match, then it might be too soon.

Is the unwed parent a minor? Many state VAP programs allow underage parents to acknowledge paternity. Additional requirements, such as the signed consent of a parent or guardian, are typical.

Genetic testing is the key to certainty about parentage. The putative father who signs the VAP waives his right to genetic testing. What’s more, the VAP is conclusive of parentage – no court order required. Before signing the VAP, talk to a family lawyer. Attempting to disestablish paternity after the short period allowed for VAP rescission will require a lawsuit. And lawsuits can be costly.

State VAP programs are for legitimizing minor children. To legitimize an adult child, an order of parentage from the court will be needed.

How Does an Agreement to Establish Parentage Work?

Signing an agreement to establish parentage is not something done off-the-cuff. To be legally effective, the agreement may need to be filed with the court and approved.  Depending on state law and local practice, judges will likely order DNA testing.

Many different situations are possible with paternity, custody, and child support – no lawyer has seen it all!  Even an experienced family lawyer may need to research your particular situation.

When Is a Lawsuit to Establish Parentage Necessary?

What should an unwed mother do if the father rejects the VAP process? Is he unsure of paternity or does he flatly deny it? What should the putative father do if he finds himself summoned to court involuntarily? The answer is the same for both parties. Each should consult a family law attorney. The result could be a lawsuit to establish paternity, parentage, or legitimation.

When can a father demand DNA testing to prove he is the father?

In an involuntary or judicial parentage establishment case, expect DNA testing to be ordered. These are not home test kits. This will be a legally accepted DNA test administered by a testing company and sent to the lab. Ask the judge to order two tests. If those results don’t match, then test again.  Fathers should strongly consider paying for the extra test.  Better safe than sorry.  A lot of money is at stake here.

What is a rebuttable presumption of paternity?

In most states, a rebuttable presumption of paternity attaches if the man is not excluded, and the genetic test results show a 99% or greater statistical probability of parentage. Based on DNA evidence alone, the court can order temporary child support.

How can he rebut the presumption of paternity when DNA tests prove he’s the biological father?

Once a presumption of paternity attaches based on DNA evidence, the putative father can raise an affirmative defense to rebut the presumption. For example:

• “My twin brother was dating the mother.”
• “I had a vasectomy before I met the mother.”
• “I was deployed overseas when the child was conceived.”
• “The mother was dating John Doe when she got pregnant. He’s the father.” The court will then order John Doe to submit to DNA testing.

Does a father have to pay child support if not on birth certificate?

If the alleged father does not prove his affirmative defense at trial, then the court will enter an order of parentage, to be followed by custody and child support orders. A paternity trial is another reason to hire experienced counsel.

Why is DNA testing such a big deal?

Proving paternity with scientific evidence requires genetic testing.  (For our purposes, genetic, paternity, and DNA testing mean the same thing.)  To prove parentage, most states require that the DNA test results show a 99% probability of paternity or higher.

When is a DNA test required to prove paternity?

Almost all states require a DNA test if paternity is challenged by the putative father. Why? Because genetic testing provides biological certainty. You should obtain two paternity tests to rule out error. Do those test results conflict? Get a third DNA test!  Many judges will encourage DNA testing to help protect fathers from paternity fraud.  For a deeper discussion, see our video, “What Family Lawyers Say About Paternity Fraud.”

If both parents are on the birth certificate but not married, who has custody?

A child born out of wedlock is presumed to be the mother’s legal offspring. Thus, she is presumed to have full custody – physical and legal.  That can change, but only after a court order.

Does the unwed mother automatically have the sole legal custody the child?

Unless and until a court order says otherwise, the mother is the custodial parent with sole physical and legal decision-making authority.

What if the mother marries the natural father?

In most states, the presumption of paternity legitimizes a child conceived out of wedlock but born after the parents marry. In fact, the child is legitimated when parents marry during the pregnancy and divorce before the birth.

The legal father enjoys the same constitutional liberty interest as the mother in the care, custody, and control of their children. He may seek joint or sole custody of the child born out of wedlock. Because state laws, court rules, and judicial interpretations vary from one jurisdiction to the next, always consult an attorney in your area.

What rights does a father have if he is on the birth certificate?

In general, if a father is on the birth certificate, but unmarried, he has no rebuttable presumption of parentage.  Again, this means a father has no enforceable rights without a court order granting him those rights.  Depending on specific state law, being listed (or signing) the birth certificate may involve signing the voluntary acknowledgment of paternity.  Most states recognize a rebuttable presumption of parentage only with marriage. If the parties were married around the time the child was conceived or born, the husband (or former husband if divorced) is presumed to be the child’s legal father. It’s his name that goes on the birth certificate.

Does the biological father have rights if he is not on the birth certificate?

A biological father has rights, but they may not yet be reflected in a court order.  In most states, as a practical matter, for an unwed father to have visitation rights he must obtain a court order.  The court order makes parents’ rights enforceable.  Many states have additional rights in addition to visitation which may attach upon the parentage determination.  Even after an unwed father signs an acknowledgment of paternity, mothers may still object to parenting time.  If the mother objects, police in most jurisdictions will not assist the unwed father without a court order from that jurisdiction granting the father specific parenting time, also called visitation.  Once paternity is established in court, the father may press for all parental rights including parenting time, physical and legal custody, visitation or parental access, and child support.

Typically, support is ordered retroactive to birth and may include an amount for prenatal, natal, and postnatal expenses. The court’s order may provide for funeral expenses, protective orders, and other provisions in the child’s best interests. This includes the legal father’s request to change the child’s surname on the birth certificate.

Your experienced family lawyer will anticipate these proceedings and have a legal strategy. Be ready.

Can a man ask for a paternity test?

Yes.  An unmarried man may ask for a paternity test.  Family lawyers routinely recommend this be done before signing or otherwise agreeing to voluntary acknowledgment of paternity.  The alleged father can always ask the mother to cooperate in paternity testing.  If she refuses, then a court order will be needed.  Once a voluntary acknowledgement of paternity is signed, each state has different laws and regulations regarding whether DNA testing is allowed after that.  See your experienced family lawyer for details.

You may believe with every ounce of your being that you are this child’s father. Even then, you should still undergo DNA testing before acknowledging paternity, before signing any agreement, and, if possible, before filing a paternity suit.

When can a father not demand a paternity test or DNA test?

In certain states, a father may be precluded from requesting court-ordered DNA testing if he has signed the voluntary acknowledgement of paternity form.  If this is your situation, there may be state specific exceptions which apply to you.  Again, see an experienced family lawyer in your jurisdiction.  Courts have authority to order the mother, child, and alleged father to submit to DNA testing for the purpose of proving parentage.  The order should specify when and where the testing will be done. An experienced family lawyer requests two DNA tests be ordered, names the testing company, and includes those specifics on the draft order for the judge to sign.

Can a DNA test prove who the father is?

Yes. There must be a statistical probability of parentage depending on state law and regulations. When test results report at least a 99%-99.9999% probability of paternity – and he is not excluded – then he’s the natural father. If he has an affirmative defense, he can attempt to disprove paternity at trial.

Most paternity test laws specify how testing should be done and the results required to prove paternity. The man is not the parent if DNA test results exclude him. Unless the test was wrong. Test twice!

Why would a father want a paternity test?

A father would want a paternity test to avoid being legally and financially required to raise another man’s child.  Click here to learn more about paternity fraud.  All states require a determination of parentage before the man acquires parental rights. We know sexual intercourse does not always result in pregnancy. Even if the mother and father were living together at the time of conception, the mother may have had relations with another man. Anything is possible!

If DNA test results do not exclude him as the father, then he is much closer to having a constitutionally protected fundamental right to parent the child.

Believe it or not, one of the primary reasons that paternity law is a complicated and detailed process, is to make every effort to protect fathers from paternity fraud.

When can a father get a DNA test while pregnant?

After the child is born, DNA sample collection is relatively easy. The familiar swab DNA test collects cells by swabbing the inside of the child’s cheek and the father’s. Samples are sent to the lab for analysis.

Blood testing both father and child is another option. DNA testing while pregnant is also possible.

Many unwed parents agree to DNA testing during the mother’s pregnancy so they can plan accordingly. Because the biological father learns the child is his early on, he may share all prenatal, natal, and postnatal expenses with the mother.

Methods of prenatal paternity testing include:

• Blood testing

Fetal DNA circulates in the mother’s blood and can be detected and analyzed. Genetic markers between alleged father and child are compared.

• Amniocenteses

Fetal cells floating in the amniotic fluid are sampled and tested.

• Chorionic Villus Sampling

With CVS, a tiny tissue sample is taken from outside the placenta where the fetus develops.

Paternity testing during pregnancy has some advantages. Talk to your physician about these prenatal medical procedures.

The putative father must establish paternity at the outset. For one, all states require a determination of parentage before a father acquires parental rights. And two, it’s better to be safe than sorry. If allowed, then sincerely consider asking for (and paying for) two paternity tests when possible.

How common is paternity fraud in the US?

No one knows.  By definition, we can’t know how many unwed fathers are paying child support, never having chosen the option for DNA testing.  Without DNA testing, even married men can’t be absolutely sure.  If a married father is sure, why have testing? Finally, we can never know when a mother is lying about paternity or simply doesn’t honestly know.  For a more detailed discussion, see our video Family Lawyers’ Experience with Paternity Fraud.

Committing paternity fraud in the U.S. involves intentionally or negligently misattributing paternity. With accurate genetic testing readily available at a reasonable cost, opportunities for fraud should be minimal.  We know the horror stories of mothers laughingly telling men they are not the father after 18 years of paying child support.

Could VAP programs make fraud easier? Possibly. In the absence of scientific evidence, the mother’s mere suspicion could result in misattribution of paternity. How to avoid paying child support for another man’s offspring? The solution is simple – DNA testing.

What is the sentence for paternity fraud?

Paternity fraud is a civil matter.  Some states may describe this as negligent or intentional misrepresentation by the mother for falsely representing that the man was the child’s biological father. Paternity fraud is cruel on many levels. It hurts families, takes financial advantage of people, and damages children. But paternity fraud is not a crime.  Even if it were a crime, proving the mother’s malicious intent to defraud would be almost impossible.  Mind reading would be required.

Will he get the money back?  It depends on the state.  Most states’ laws prevent courts from awarding retroactive child support as damages.  Awarding child support returned to the father is considered an impermissible retroactive modification of the original child support order.  There may be other damages available, though.

When did mother’s fraudulent conduct come to light?

If fraud is suspected after the man voluntarily acknowledged paternity, then his first opportunity to challenge paternity is to rescind his VAP, if it is allowed and he has requested it within the time permitted under state law.  Also, know that father’s rights groups across America continue to try to change paternity laws to protect men against paternity fraud.  So, never rely on what you read on the Internet.  Make absolutely sure you are getting the most updated information.

Is it too late to rescind the VAP? Depends on state law.  Talk to your experienced family law attorney.  Look to filing a complaint to disestablish paternity and challenge the VAP on grounds of fraud. Once paternity is disestablished, the man can sue the mother in civil court for paternity fraud and seek damages.

With the passage of time, the case can be made impossible. Some actions are barred by statute of limitations. Talk to an attorney.

Paternity is established. What’s next? Child custody.

What are the custody laws for unmarried parents?

The court with jurisdiction has authority to award joint custody to unmarried parents or sole custody to one parent.

Custody is typically divided into physical custody and legal custody. Physical custody is the child’s living arrangements. One parent is the primary caregiver, or primary residential parent, with whom the child resides most of the time. One concern with joint physical custody is the possibility of creating disruption and instability for the child.

Legal custody is a parent’s right to make decisions about the child’s education, non-emergency health care, religious upbringing, and extracurricular activities. With joint legal custody, a concern is the potential for future litigation.

Are child custody factors different for unmarried parents?

Some states apply a tender-years presumption favoring the mother. In other states, the child’s age is a best interests factor to consider. A parent’s sex, or gender, is not a custody factor. Realistically, as primary caregiver, the mother of a young child is better positioned to be the primary residential parent, with the natural father obtaining scheduled parenting time. There are exceptions and circumstances matter.

With identical custody laws for married and unmarried parents, how each judge interprets the law and weighs each custody factor can differ. Ideally, both parents should enjoy maximum participation in their child’s life. Hiring an attorney is the first step in making that happen.

The unmarried father must present a strong case for shared custody with substantial parenting time. The case may require a comparative fitness analysis, independent child custody evaluation, and mediation. The child’s welfare is paramount in the court’s analysis.

Do unmarried parents create parenting plan agreements?

Yes, they do. Whether they live together or not, unwed parents may enter into a parenting plan agreement. They can agree to legal decision-making authority, parenting time, vacation time, additional child support for extracurricular activities, and so on.  There is one catch, though.  The agreement must be approved by and contained in a court order.  States have different names for this particular order.  Different courts within a state may have different procedures for handling contested and uncontested custody matters.

What is the most common child custody agreement?

It depends on state law and local judge interpretation.  Absent problems such as domestic violence or specific harm to the child, fathers have traditionally obtained at least 80 nights per year.  This means fathers will enjoy parenting time at least every other weekend, at least two weeks in the summer, and alternate holiday time. But today many jurisdictions offer equal parenting time as a presumption.  Check your state’s law.

Consider negotiating a parenting arrangement that reflects the practical time and resource limitations of parenthood.  Be detailed and flexible.  We have several videos discussing custody and visitation including “Co-parenting Do’s and Don’ts.”

Co-parenting arrangements between unwed parents are not without concern. Do they have the cooperative spirit essential to share joint custody? In all cases, the child’s best interests are determinative.  Because every parent’s situation is unique, have a sincere discussion with your experienced family law attorney.  Weigh your options.  Having a negotiating strategy for parenting time is much better than not.

Can one parent keep a child from the other parent without court orders?

An unmarried father cannot take a child from a mother without a court order.  When successful co-parenting is impossible, the mother will have full custody unless she is proven to be an unfit parent.  The process and evidence required to take a child from the mother usually requires solid evidence of a substantial risk of harm to the child.  We are talking drug abuse, child abuse, abandonment, or other domestic violence.

Can a mother withhold a child from the father?

A mother cannot deny access to his child if the father has become the legal father and has specific court ordered parenting time.  Stated another way, the father can be denied access if he has no court ordered parenting rights.  That process can begin with the voluntary acknowledgment of paternity form.  The legal father may or may not seek visitation or supervised visitation.  The legal father who chooses not to embrace a relationship with his offspring will still be ordered to provide monetary support.

In any situation in which a mother denies the father access after he has been awarded specific court ordered parenting time, the father should seek legal counsel and determine whether to file a court action to enforce his parenting rights.

CHILD SUPPORT

Is child support different for unmarried parents?

Child support is generally the same for unmarried parents as married parents although there may be different procedures.  One difference may be when the support obligation begins.  In paternity cases, child support is set from the child’s birth date and includes birthing expenses not covered by insurance.  For married parents living apart, the child support can similarly include birthing expenses and support beginning with the child’s birth.  For married parents living together, the birthing expenses and support will likely be ordered only from the date of separation or filing as part of the divorce.

Can unmarried father be forced to pay child support?

Unmarried fathers can be forced to pay child support.  Any paternity or legitimation order or voluntary acknowledgement of paternity will include the biological father’s SSN to facilitate enforcement of child support orders.  The courts and states have many child support enforcement tools at their disposal.  One such tool that is used only in extreme circumstances is incarceration.  Child support obligations usually incur interest and can include attorney’s fees to seek payment.  Finally, child support is not able to be bankrupted.

Is there any good news?  Know that most states allow for modification of child support in the short-term or long-term if there is a legitimate reason a father can’t provide.  Child support moving forward is modifiable.  Fathers should always speak with an experienced family law attorney to learn their legal options which depend on his unique circumstances.

Do you have to pay child support if you are not married?

Unmarried parents have a co-equal duty to support their child. They go through the same support calculations as divorced parents.  Monthly payments are calculated using the same child support guidelines and worksheets. The starting point? Child-rearing expenses mainly for housing, food, transportation, education, and clothing.

Who is financially responsible for a child when the parents are not married?

When unmarried parents have a parenting plan, their child support obligations will depend, in part, on the parents’ earning capacities, parenting time arrangements, and other plan details.  Depending on your state’s laws, other factors may include support of other children, childcare, recurring medical expenses, and special needs.  Most child support guidelines attempt to be flexible enough that parents share a fair amount of the financial burden of child-rearing without making the other parent rich off child support.

Before you go, let’s review some important tips and strategies.

Tips for Unwed Mothers

• Hire an experienced family law attorney early in your pregnancy.
• Learn the legal process in your jurisdiction.
• Be prepared to complete the mother’s worksheet when you arrive at the hospital to deliver your baby.
• You have a legal right to child support from the other parent. Your ability to receive child support depends upon paternity establishment.
• If you don’t know who the biological father is, then discuss with your lawyer the possibility of court-ordered DNA testing of the most likely candidates.
• Learn what rights the father has and the limitations on those rights.
• Learn the scope of your rights and obligations to avoid being bullied.
• Absent domestic violence or other serious problems, it’s in your child’s best interest to have a positive relationship with the father.

Resolving these important issues early can help foster and encourage a better relationship between father and child.

Tips for Unwed Fathers

• Hire an experienced family lawyer immediately upon learning of the pregnancy. Don’t procrastinate, even if you believe you’re the child’s dad.
• Learn the legal process in your jurisdiction. Listen to your attorney about making sure the process is fair and reasonable and learn your legal options.
• Undergo DNA testing through a reputable company.
• Learn your parental rights and obligations as the legal father.
• You have a right of access to the child after the legal determination of paternity. But your experienced family law attorney may advise you request time with your child before the process is finished.
• You have a co-equal responsibility with the mother to financially support your child.
• Depending on the state, child support can be ordered retroactive to the child’s birth and include out-of-pocket birthing expenses. By delaying paternity establishment, you could find yourself owing tens of thousands of dollars seemingly overnight. Never procrastinate.

Assert your parental rights early. Get in front of child support orders. And start enjoying visitation or parenting time with your child as soon as possible. Most family lawyers have represented a father who had been enjoying parenting time with their child without argument – until the mother changed her mind.  The process to assert paternity and obtain court ordered visitation rights can take months.

This video is not a substitute for legal advice. In fact, we only scratched the surface here. Every state and local jurisdiction may have important differences in legal terms, forms, procedures, requirements, rules, and exceptions to those rules. With the passage of time, laws evolve and change. Forms found online might not follow exactly what the law requires at that moment.

At times in this video, it may have seemed we said the same thing more than once.  We did.  We tried to provide the information in the context of several different perspectives.

Yes, this is a legal minefield. Always obtain specific legal advice from an experienced family lawyer serving your community.