It’s complicated.
If that’s the status of your relationship with your child’s other parent, things can become even more complex when your relationship ends. You aren’t married, so you aren’t divorcing. But you are still determining who has what rights, responsibilities, and access to your child. Whether you are splitting from your child’s other parent or you have not been together from the time the child was born, determining custody without a divorce can create a complicated legal situation. Here is some information about custody disputes between unmarried parents:
You must establish paternity.
Utah law assumes that if a woman is married when she gives birth, the husband is the child’s father. If she’s not married, however, paternity needs to be established. Establishing paternity means determining who the law recognizes as the child’s father. There is no legal presumption of fatherhood in the case of unmarried parents, so you must make the identity of the father official using the legal process.
Without a legal connection, a man typically has no rights to visitation, custody, medical information, or anything else associated with the child. He generally has no obligation to support the child either. The child will not have an automatic legal claim to the man’s inheritance, social security benefits, health insurance, or veteran benefits.
If a man is not legally the father, then any rights, responsibilities, or benefits that apply between parent and child essentially do not exist. So whether you are the mother or father, establishing paternity is usually in your best interest, as well as the child’s best interest. Even if both parents agree that the man is the father, you must establish paternity before any legal protections and rights apply. In Utah, you can do that in one of two ways:
- If both parents agree on paternity, the man can sign a Voluntary Declaration of Paternity (VDP) (Utah Code Section 78B-15-302). This form can be filled out at birth or later as long as both parents agree on the father’s identity.
- A DNA test is required to scientifically determine paternity if there is a question or disagreement about who the father is. The father can do this voluntarily, or if he refuses, the court can compel him to take a paternity test in most situations.
If you need assistance determining paternity, a lawyer for parental rights in Salt Lake or other Utah cities can offer insights or guide you through the process.
Once you’ve established paternity, the child custody process can continue.
At birth, primary custody goes to the mother.
In the case of unmarried parents, primary custody will initially default to the mother after the child is born. The child must go home with and be cared for by someone, and until the legal system can determine paternity and a fair plan for the child, the mother has custody.
However, the father has a right to petition the court for access to his child. He can even push for sole or primary custody. Utah law stipulates that fathers have the same right to children as mothers and requires courts to ignore gender when deciding custody.
If you establish paternity at birth, a father has a right to spend time with his child. If paternity isn’t confirmed until later, custody and access are based on the man’s suitability and what is in the child’s best interest at that time.
While the law says that gender should not be a deciding factor in custody decisions, it is rare for the courts to award an unmarried father custody instead of the mother. However, if a mother abandons her child or her ability to care for the child properly is questioned, the father will automatically gain custody if his paternity is legally recognized. If paternity is not established when a child is removed from the mother’s custody by Family and Child Services, he must be vetted and await a decision. The child will remain in foster care in the interim.
The court system determines a fair plan.
After your child is born and you’ve established paternity, the courts will treat the question of custody and support in much the same way as if you were divorcing. Whether you are a couple or not, the courts will decide what custody, visitation, and support are in your child’s best interest.
If parents can agree about custody, that agreement can become the basis for the child custody decision. If not, the court will determine custody rights based on each parent’s suitability, relationship with the child, and other relevant factors.
The court will determine a plan for physical and legal custody, medical and educational decision-making, support payments, and even factors like which parent can claim the child as a dependent on their taxes.
When a relationship ends, things can get complicated. If the relationship is between two unwed people who share a child, there are extra considerations. In this situation, it is even more critical that you understand your legal rights and make choices most likely to lead to the best outcomes for custody and support. Lawyers for custody battles aren’t just for divorcing parents. Unmarried parents need to understand the law and have an expert fighting for them to ensure their rights are protected too.
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Unmarried parents face unique legal challenges in custody disputes, especially when paternity is not assumed. Establishing paternity is crucial for rights to custody, visitation, and decision-making. Primary custody is assigned to the mother in Utah, but fathers can petition for custody or visitation rights. A proactive approach prioritizes child welfare and protects parents’ rights.
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