When Unmarried Parents Break Up: Taking Care of Your Children

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Unmarried parents who end their relationship must make arrangements to care for their childrenEvery child has two parents, and every child deserves emotional and financial support from both parents.

When an unmarried couple has a child together, they usually live in the same home. They likely work out the issues and finances of child care, custody, and child support informally as they go along.

However, the situation becomes murkier if the unmarried birth parents decide to end their relationship and no longer live together. They need to work out responsibilities for the custody and financial support to ensure the child’s health, safety, and well-being.

NOTE: All information in this blog post applies only to New York State residents. If either parent lives in another state, please visit the relevant state’s child support website. Regardless of where you live, please consult an attorney before taking action.

An Unmarried Couple Can Voluntarily Create Their Own Child-Related Agreements

Unmarried couples don’t need to go through the divorce process to end their relationship. New York state doesn’t require them to file paperwork regarding care of their children either.

Still, the parents need to make and carry out decisions regarding custody, visitation, and child support arrangements. However, unless the parents put those those informal voluntary agreements into the legal system, they are unenforceable.

Creating Your Own Legal Agreements Voluntarily

Let’s say you and the other parent have informally made decisions such as where your children will live and go to school; who has legal custody; and how the children’s financial needs and expenses will be covered. Typical topics include the parenting plan, child support, and child custody.

Graphic of New York State emphasizing this post applies only to residents of New York State.First incorporate these decisions into a NYS document called Stipulation of Settlement. It requires specific information so the court is satisfied that you are acting in the best interests of your children.

Parents usually do this with the help of a mediator or a family law attorney.

Then the parents must submit paperwork to two different parts of NYS Family Court:

Filing a Stipulated Agreement with NYS Family Court

NYS Family Court addresses and resolves issues of child custody between unmarried parents instead of NYS Supreme Court, which is where divorcing parties appear. The steps to do this are:

  1. The parent filing for custody obtains a Petition for Custody form from the Family Court clerk’s office.
  2. After the parent completes the form, he or she returns it to the Family Court clerk’s office. In New York, filing the petition is free; check with the family court in the state in which the child lives to find out if there are fees for filing.
  3. The parent filing the petition then needs to serve the other parent with a copy, either by process server, sheriff, or registered mail, depending on the state’s requirement. The court requires proof that the other parent was served.
  4. Once the clerk has the petition, the clerk will notify the parents of the court appearance date by US mail.

Appearing in NYS Family Court

If both unmarried parents have agreed on a custody arrangement and a parenting plan, their appearance before a judge may be a necessary formality to advise the judge of the plan.

After the appearance, the court incorporates the stipulated agreement into an Order of Custody and signed by the judge. It’s now an enforceable understanding between the parents.

Child Support Is Handled by a Different Section of Family Court

The Order of Custody doesn’t automatically include child support—temporary or otherwise. A separate subsection of NYS Family Court deals with child support matters. The parent with custody files a Petition for Child Support. The court issues an Order of Child Support by agreement between the two parents or after a trial and a decision by a support magistrate. (A support magistrate is appointed by the courts to hear and determine child support proceedings.)

As noted earlier, individuals who are not married or who were previously divorced and are back to modify custody or child support generally use this Family Court form. The Supreme Court handles divorcing couples.

Just as in a child custody proceeding for a divorcing couple, however, if the issue cannot be resolved and it looks like the unmarried parents will contest the custody case, the dispute may go to trial.

The court is more likely to accept an agreement in which the biological or legally adoptive parent(s) of the child becomes the custodial parent.

  • If one of you is the child’s biological parent and the other is not, chances are the court will expect (or require) that the child’s primary residence be with the biological parent. If the other parent has gone through the legal adoption process, or if the parents are of the same sex and both have raised the child together, he or she also has a right to share custody.
  • If one person is neither the biological nor the adopted parent, but this person participated equally in raising the child and wants to stay involved in the child’s life, he or she needs to work with the legal parent to determine the most practical arrangement for doing so. If the legal parent is not open to such an agreement, the only recourse is to take the matter to court.

Legal Fatherhood Doesn’t Necessarily Happen with Birth of the Child

If the biological mother and biological father weren’t married at the time of the child’s birth, there is no legal relationship between the child and father. Under this circumstance, the unmarried biological father has no rights or responsibilities regarding the child.

Unless the unmarried parents have voluntarily created the needed legal agreements as described above:

  • The mother may have no ability to request help from the relevant NYS county Department of Social Services to obtain support payments from a non-biological “father.” The couple must first take steps to establish paternity, which then establishes the duty to support the child.
  • Without confirmation of paternity, the unmarried biological father has no legal right to child custody.

Even with the voluntary legal agreements as described above, without paternity being established, the child does not gain associated legal rights and privileges as part of having a legal father. Among these may be rights to inheritance, rights to the father’s medical and life insurance benefits, and rights to Social Security and possibly veterans’ benefits.

New York has programs that give unmarried parents the opportunity to acknowledge the unmarried biological father’s paternity of the newborn after the child’s birth.

Please consult with a family law attorney in your area to understand the financial and emotional risks involved and the impact this court proceeding may have on your relationship with the child.


For more divorce topics covered by BJ Mann: BJ Mann Site Content Index

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