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Who Gets Custody of the Child When the Parents Are Not Married?

Home » Who Gets Custody of the Child When the Parents Are Not Married?

How Does Custody Work for Unmarried Couples as Compared to Couples Who Are Married? 

Unmarried parents and child custody can have the potential to create an extremely volatile situation when there is no agreement in place between parents. An agreement sets forth the rights of the parents as well as the relationships. Married couples have these rights and responsibilities built in—even though a court may end up making custody decisions. Even when a man’s name is on the birth certificate, he has no legal relationship to the child under Michigan law unless:    

  • The parents have signed an Acknowledgement of Paternity (AOP) form—many parents sign such a form soon after the birth of their child. 
  • If one refuses to sign the AOP form, a Judgment of Paternity must be sought through the courts.    

At the time a Judgment of Paternity is issued, custody issues may also be addressed if the parents do not live together. Without a Judgement of Paternity or an Acknowledgement of Paternity form signed by both parents, Michigan law gives the mother of the child sole legal and physical custody. If the mother leaves the relationship or the father moves out of the home, the father has no legal rights to parenting time or custody without a Judgment of Paternity from the court. While an Acknowledgement of Paternity form does establish paternity, it does not establish parenting time or custody unless accompanied by a stipulated custody order. 

How is Child Custody Decided for Unmarried Couples? 

Having an Acknowledgement of Paternity form and a stipulated custody order in place is like purchasing insurance or having a pre or postnuptial agreement in a marriage. While we all want to believe our relationships will last forever, unfortunately, that is not the case in a significant percentage of relationships.  

Having these documents in place is like insurance—protections are in place if they are needed. Children of unmarried parents will have the same rights to parenting time with both parents (and the same rights to financial support from both parents) when the Acknowledgement of Paternity form and stipulated child custody order are completed. If the mother of the child is married to another man, her husband must also file a Revocation of Paternity action. 

It is important that both parents understand that by signing an AOP, they are giving up the right to genetic testing to find out whether the man is truly the biological father of the child. Both parents are also foregoing their right to a lawyer.  

Without these agreements in place, paternity must first be established then custody issues will be determined. As with married parents seeking custody, there are two types of custody. Legal custody refers to the right to make important decisions for your child such as those concerning education, religion, and medical treatments.  

Physical custody determines where the child lives. Joint physical custody means the child lives with both parents, on a set schedule. Unless the parents live near to one another—and near to the child’s school, joint physical custody can be complicated. Primary physical custody means the child lives with one parent, while the other parent has regular visitation rights.  

Custody decisions for unmarried parents will be determined in much the same way as custody decisions for married parents. The courts always base their decisions based on the best interests of the child. A judge will consider:   

  • Who the primary caretaker of the child currently is  
  • The relationship between the child and each parent,   
  • Sibling and other family relationships 
  • How well the child has adjusted to his or her community, school, and home 
  • The mental and physical health of all those involved 
  • The length of time the child has lived in a stable, satisfactory environment 
  • Each parent’s ability to give the child guidance, love, and care 
  • Whether there is a history of domestic abuse 
  • The willingness of each parent to encourage and permit frequent, continuing contact with the other parent 

When joint custody is sought, the court will have to assess whether the parents are able to cooperate in the child-rearing process. There must be methods for dispute resolution in place, and domestic abuse cannot be a prior issue.   

What Does a Child Custody Agreement for Unmarried Couples Look Like? 

If both parents have not signed an AOP, paternity must be established, then the court will determine a child custody agreement—much like they do for married parents. Once the child custody agreement has been determined, the parents are bound by this agreement unless they have properly requested—and received—a court modification to the original child custody agreement.  

How Can Melissa Pearce & Associates Help with Your Child Custody Agreement?   

Child custody issues are inherently fraught with complexities, and these are sometimes further complicated when parents are unmarried. Far too many parents use their children to “punish” their partner for real or perceived issues. Novi attorney Melissa Pearce believes parents can learn to co-parent in a positive manner and that when this occurs, children will thrive. Few parents would willfully choose to cause emotional harm to their children, yet many fail to see they are doing just that when the breakup of a relationship is excessively contentious.  The goal at Melissa Pearce & Associates, PLC, is to reach the most equitable, amicable agreement possible—one in which the children will spend quality time with both parents. We treat each client with dignity, respect, and honesty as we work to help them obtain their objectives Contact attorney Melissa Pearce to schedule a pre-engagement meeting today.     

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