Two Parents, No Wedding: How Child Custody Works If You're Not Married

Child custody is usually decided during divorce – but what happens if there’s not a marriage to start a divorce?

That’s half of what makes custody agreements for an unmarried couple more difficult to sort out, since there was never a formal legal agreement in place to begin with.

In this article, we’ll answer some key questions about these sorts of cases, including:

Maryland Law Regarding Child Custody for Unmarried Parents

To begin, Maryland does not have a legal “presumption of custody.”

In plain English, that means that no one parent or guardian is assumed to be the best parent by default.

For example, Maryland courts don’t consider the mother as the automatic “best parent” for the child.

(That said, she does have automatic parental rights, which we’ll discuss a bit later.)

The mother will have to prove that she can provide the best home for the child, just as any other potential guardian would.

Theoretically, this legal standing should give same-sex partners, fathers, and even grandparents a shot at guardianship or custody of the child, particularly when the parents aren’t married.

All options are on the table when going to court for custody: From sole custody for one parent, to custody that is divided equally.

The court can then tailor the outcome of each custody case for the specific circumstances and needs of each child.

Custody Decisions and Abuse

An exception to this general consideration is if one of the parents has been abusive. When abuse or neglect is involved, the other parent or guardian may be granted sole custody.

This custody arrangement can be temporary until the full custody case is decided. Or, it may be permanent, depending on the actions of the other parties involved.

Parental Rights and Unmarried Couples

For unmarried couples, the mother is automatically granted parental rights when a child is born.

(After all, they’re pretty sure they know who the biological mother is, immediately after birth!)

There are four ways for people other than the biological mother to be legally recognized as parents of a child:

  1. Being named as a parent on the child’s official Maryland state birth certificate;
  2. Legally adopting the child of your partner, especially for same-sex parents;
  3. A written “declaration of paternity that is not objected to by the mother; or
  4. A genetic test proving biological paternity (or maternity, in the cases of same-sex families with surrogates).

Being recognized as a child’s legal parent heavily weighs in your favor during custody discussions. Courts typically want to keep children with their parents, or at least stable family members.

So, make sure that you’re legally considered the child’s parent if you’re about to start a custody case.

Child Custody Legal Decisions for Unmarried Couples

As long as both parents have established legal paternity, the decisions and factors considered in a child custody case are pretty similar for both married and unmarried couples.

The courts generally take the same attitudes, use the same philosophies, and measure the same indicators of a good home for raising children for married and unmarried couples alike.

To reiterate a previous point, Maryland courts don’t really care what the legal parents or potential guardians want regarding custody. They just care what’s in the child’s “best interest.”

To decide how to split a child’s custody between unmarried parents or guardians, the court will take many factors into account, including:

  • How well the parents can communicate and make decisions as a team, even if not married;
  • How willing the parents are to share custody;
  • How "fit" a parent will be to care for the child, as determined by the court;
  • The preference of the child, if any and if they're old enough;
  • Any possible negative changes to the child's social or school life;
  • How close the parents' homes are to one another;
  • Each parent's jobs and schedules;
  • How old and how many children are under consideration for custody;
  • How "sincere" the parent's request for custody is;
  • Whether a parent can afford to care for a child; and
  • How custody might impact state or federal assistance programs.

How to Protect Your Child Custody Case as a Never-Married Parent

For fathers, the single most important thing to do in a custody case involving parents who never married is to make sure you have established your legal paternity.

Without legally establishing that you are the parent of your child, it is extremely difficult to create a convincing case in court for any sort of custody.

From the Maryland court’s perspective, without legal paternity, you’re effectively a stranger wanting to shelter and raise a child that you have no natural right to parent.

Once you established your legal paternity and parental rights, you may want to consider the ways in which you can prove that you can provide a stable and loving home for your child.

Just as with a regular custody case, the courts will heavily weigh the relationship a potential caregiver has with the child in question. Just love your child and be the absolute best parent you can be, with the restrictions that may currently be in place.

Oh, and hire a great custody lawyer – one experienced in father's and grandparent's rights, as well as reproductive technology-related cases. While the law recognizes no bias, all judges and commissioners are human at heart. An experienced family legal expert will help remind them to keep the child’s best interests in mind, so you can keep your family happy and whole.

As part of every Marylander's free initial consultation at our office, our Firm is happy to review your custody case and point out possible problems – and opportunities – that can help get your family where it needs to be.

Let us know if we can help!

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