Becoming a parent is the ultimate leap of faith -- there's no way to anticipate the roller-coaster ride ahead. Boy or girl? Hell-raiser or gentle spirit? Few experiences are as uncharted as parenthood, despite the mountain of information that's appeared in the last 10 years featuring that new noun, "parenting."
But wait - there's one thing even less charted version of parenting - doing it as part of an unmarried pair. Once you slip on a wedding ring, the law has you covered-- most state statutes outline rights and responsibilities for married couples. Few comparable statutes exist to guide the ringless.
However, the same issues - equal partnership in raising your child, both parents providing financial support, etc. - exist whether or not you're married to your partner.
As an unmarried parent , you have a bit more work to do to find out 1) what your rights and responsibilities as a parent are and 2) How to enforce those rights. For example: in a married couple, the husband is presumed to be the father of any children born during the marriage. For an unmarried couple, there's no presumption of paternity. So it's important, whether there's a breakup in your future or not, that paternity be established for the child's entitlement to benefits (like a pension) coming to his dad, as well as future custody or support considerations.
We'll tackle basic questions of unmarried parenthood: paternity, child support, custody, visitation and termination of parental rights. In deciding these complex issues, courts use the "best interests of the child" standard and the presumption that both parents have a right to nurture and bring up their child unless this would be harmful to the child.
PATERNITYThere are several reasons you might want to establish paternity for your child:
- to get child support,
- to strengthen the bond between the child and his dad,
- to enforce your parental rights, such as visitation and custody in case of a breakup.
Some people associate establishing paternity with the kind of dramatic scenes in "All My Children." It's seldom as overblown. The dad can sign an affidavit admitting paternity, and also have his name listed on the birth certificate. It's not essential to establish paternity to get child support, visitation or custody, unless the question is still open.
If dad denies paternity, mom (or any other party with standing) can file a civil action to prove it by testimony or scientific tests. The state or federal government has standing to sue if trying to collect support from a father.
It's generally a good idea to settle the paternity issue early in the child's life to avoid complications later.
Here's something that REALLY doesn't depend on marriage. Parents are responsible for supporting their children until the age of majority, usually 18, unless the child is declared "emancipated" before then. "Support" includes food, clothing, shelter, education and healthcare, including payment of health insurance premiums.
How is support calculated? Courts consider the needs and financial resources of both child and parents, along with factors such as the standard of living the child is used to, the physical and emotional condition and educational needs of the child, availability of medical care for the child at a reasonable cost, etc. Most states have Basic Monthly Child Support Guidelines, which calculate child support based on the combined gross income of the parents. Adjustments in the amount due can be made for obligations such as alimony, other child support obligations and health insurance premiums.
CUSTODYWhen parents separate, there are two kinds of custody to consider:
- physical custody of the child, which emphasizes where the child resides. This could be with one parent, with both parents on a rotating basis, etc. and
- legal custody, which emphasizes decision-making authority over things like health care, religion, education etc.
In making custody decisions, the "best interests of the child" standard is key. Other criteria include the wishes of the child and parties, the relationship a child has with each of the parent and his/her extended family; the mental and physical health of parent or child; the child's adjustment to his home, school or community, and which option is more likely to promote continuity and stability in the child's life.
The playing field generally starts out level, unless harmful facts (such as the use of illegal drugs by one parent) indicate that equal access to the child by both parents wouldn't be in the child's best interests.
Who can file a custody petition? As with support, anyone who has "standing" in the lawsuit. This includes parents, grandparents, and sometimes the state.
Another burden of nuclear family disintegration is the need to establish "visitation." It's a shock: one day you're there to dole out Cheerios each morning; the next, you're checking the calendar to see if this is your Friday night with Justin. It's important to hammer out a fair and, if possible, liberal visitation schedule so the child can continue a meaningful relationship with both parents.
Courts generally assume that frequent contact with both parents is good for the child, unless facts are shown otherwise.
One of the most problematic areas in overseeing visitation is the tendency of parents to "link" support and visitation: if mom's check bounces this week or simply never arrives, she doesn't get to take the kids this weekend. This kind of "tit for tat" retaliation drives judges crazy. The law has addressed this issue by stating that the responsibility to support a child and the right to see him ARE NOT dependent on each other. In other words, visitation can't be cancelled if that check ISN'T in the mail. Lapses in support or visitation rights need to be handled separately.
TERMINATION OF PARENTAL RIGHTS (TPR)
In extreme situations such as abandonment, neglect, abuse, severe mental illness or a long prison sentence, either parent can petition the court to "cut off" the rights of the other parent to the child. Sometimes, the child is later adopted by the custodial parent's partner.
As an unmarried parent, you're entitled to file to terminate the other parent's rights if any of these extreme situations exist. Courts generally don't take these requests lightly, but require plenty of proof before ending a parent's right to stay involved with his/her child.
AN OUNCE OF PREVENTION: THE PARENTING AGREEMENT
Because few laws specifically address the concerns of unmarried parents, it's important that parents anticipate problems before they blossom into crises. Whether parents stay together forever or separate, they should think carefully about making a parenting agreement.
What's a "parenting agreement?" Simply, a contract that states that both parents intend to raise this child, and contains the specifics of how they've agreed to do it. Having a parenting agreement prevents lots of issues from becoming problems, because the solution is in the agreement itself.
Most states recognize parenting agreements. Washington, for example, recognizes the advantage of parenting agreements, known as "permanent parenting plans." The law state goals of such a plan: a) provide for the child's physical care; b) maintain the child's emotional stability; c) provide for the child's changing needs; d) set forth the authority and responsibilities of each parent; e) minimize the child's exposure to harmful parental conflict; f) Encourage the parents to meet their responsibilities to their minor children through agreements rather than by relying on judicial intervention; and g) to otherwise protect the best interests of the child.
Check with an experienced family law attorney for your state's procedure.
Think of parenting plans as "prenuptial agreements" that deal with kids' concerns rather than who gets the Tiffany lamps. There may be no need to enforce it later (assuming everyone lives relatively happy ever after), but if a breakup occurs, there's a plan in place. This can lessen the sting of separation, which is painful whether or not there's a marriage certificate.
Bringing up baby was never easy, no matter how it looked in those old 40's movies. If you happen not to be married to your co-parent, things are a tad tougher. But remember, you have just as many rights (and responsibilities) as wedded types, and, with a little luck and planning, both your family life and your child will benefit.
Joan E. Lisante is an attorney and writer in Fairfax County, Virginia.