Married or not, one thing never changes—when you split up, it’s vital for your kids’ current and future well-being that you try to reach a compromise about issues of custody, visitation, and support. Doing this in a constructive, humane way may be a great challenge. But, your ability to get along civilly—if not cheerfully—is the biggest gift you can give your children. Sometimes this can be accomplished through open discussions between the two of you. In other situations it will require counseling, therapy, or mediation. No matter how scary or messy breaking up can sometimes be, as long as you are each determined to avoid a contested court battle and willing to put your egos aside in an effort to work together in the best interests of your child, you should be able to work out even the toughest parenting issues.
If you can’t reach an early compromise on the issues of custody (who has legal authority over the child and where does the child live), visitation (how often and under what conditions does the noncustodial parent spend time with the child), and child support (whether the noncustodial parent contributes anything to the costs of raising the child), you will have to submit your dispute to the court system.
While the specific rules for child custody and visitation differ from state to state, here is a general overview. For more specific details, see the articles in the Child Custody, Child Support & Visitation section of the Divorce & Family Law area of Nolo's website.
The Rights of Unmarried Parents Who Are Both Legal Parents
If both of you are legal parents of the child—either because you are both biological parents, because you have jointly adopted your child, or because the nonbiological parent has been able to obtain a legally valid stepparent or second-parent adoption—your child-related disputes will normally be handled in the same way as if you were a divorcing married couple. You may be required to attend mediation sessions or submit to an investigative process with county personnel. After listening to a county social worker’s report about each of your parenting abilities and home situations, the local family court judge will have great discretion to make child custody and visitation decisions. The legal standard the judge will always follow is the “best interests of the child.” In most states you can propose your own custody and visitation arrangements. If the judge believes these to be sensible (and especially if you both agree to follow them), the court will often approve your proposal. But if the judge doesn’t agree with your proposal, the judge can substitute a modified or even completely different arrangement.
In many states the court will order that both legal parents retain custody (sometimes called joint, or shared, legal custody). This means each parent has equal authority over the key decisions in the child’s life (such as education and medical care), as well as a legal obligation to care for and support the child. Physical custody (where the child lives) is typically shared, with the child spending some days or weeks with one parent and living with the other parent at other times. In other states the court will award both parents “joint legal custody,” but stipulate that one parent will be the “primary physical custodian.” In still other states, it is far more common for the court to award one parent “primary physical custody,” while the other is given “reasonable rights of visitation.” But no matter what the legal description, the usual practical result is that the parent who isn’t the primary caretaker during the school week is granted liberal rights to spend weekends or other time with the child (called visitation) unless there is a strong reason why this would be detrimental to the child.
For more details on child custody, see the article How Living Together Affects Custody of Children on this site.
Like custody, you and your former partner can make visitation arrangements voluntarily. However, if your efforts are frustrated by the actions of the other parent (or someone else with physical custody of the child), you will have to file a court action and request that a judge order visitation.
In every state, both legal parents are required to support their children, regardless of whether they were married when the child was born. When it comes to supporting a child financially, if parental incomes are unequal—or if one parent is shouldering most of the costs of taking care of the child—the family law court will order the noncustodial parent to contribute a specified sum of money to the costs of childrearing (called child support), often by referring to published guidelines establishing minimum levels of support. The family law court will retain the right to modify this amount should parental incomes or the needs of the children change.
The amount of child support awarded will depend on how much each parent makes and spends on housing, health care, and other necessary child-related expenses, including dental bills and private school tuition. The monthly amount can vary widely, and each state has its own child support guidelines that are set by statute. We encourage you to learn what the court would likely order in your particular situation, so that you have an idea of where to start in the negotiation process.
If support isn’t paid voluntarily, the parent with custody or someone acting on the child’s behalf (such as the welfare department) can sue the noncustodial parent to obtain a court order setting the amount of child support the noncustodial parent must pay. If the father doesn’t pay, but has the ability to do so, the district attorney can prosecute him under criminal laws. County jails are full of fathers who don’t take their support obligations seriously.
For more details on legal requirements regarding child support, see the article How Living Together Affects Child Support Payments on this site.
Legal Rights of Nonlegal Parents
Where only one person in an unmarried couple is the legal parent (for example, you came along after your partner’s child was born and did not adopt the child), the legal situation is very different. In most states, the nonlegal parent has few legal rights, and in a few states, none at all. This is usually true even if the nonlegal parent has helped raise the child for many years and is a primary giver of care and emotional support.
Fortunately, an increasing number of states are beginning to recognize the right of nonlegal parents to visit the children they have helped raise; Ohio, Virginia, and Wyoming allow “any interested person” to bring an action for visitation, and Arizona allows visitation to persons who act as parents to a child. A few courts have even awarded custody to the nonlegal parent, especially where that person was the primary caregiver. And when the natural parent is unfit or deceased, it is more likely for courts to give the nonlegal parent a major child-rearing role (and sometimes to prefer the nonlegal parent to grandparents or other blood relatives).
Because the law does not fully recognize their relationship with the child, nonlegal parents rarely have any financial obligations to their partner’s children. And where a nonlegal parent offers to help support the children in exchange for visitation or custody rights, most courts say no.
In some states, second-parent adoption may be available even if you and your partner are not living together any more. If the legal parent is willing to formalize the nonlegal parent’s relationship with the child, consult a lawyer about whether a second-parent adoption is a possibility. If it is, you can incorporate a paragraph to the effect that you intend to complete a second-parent adoption into the sample parenting agreement included here.
If you are being denied the right to continue actively participating in the life of a child you have helped raise, your first step should be to attempt to work with the legal parent to create a practical arrangement that meets the child’s needs as well as yours. Failing this, you will need to consider whether it makes sense to attempt to achieve your goals by going to court. But before you do, you’ll want to do the necessary legal research in your state or consult a family law attorney to see if your state allows you to present a claim for visitation or partial custody if you are not a legal parent, and what procedures you must follow.
If you are the legal parent and you are facing a custody and visitation challenge from your former partner, make your children’s emotional needs—not yours—the highest priority. If your children want to remain in close contact with your ex (who they may have lived with for many years), put their wishes before your own. Of course, if you truly believe that your former partner’s interaction with your kids will be seriously harmful, by all means resist his or her claims for custody or visitation.
Parenting Agreements for Children of Unmarried Couples
Because unmarried couples don’t get divorces, judges and lawyers aren’t necessarily involved in the child-raising issues. Unmarried couples can make their own parenting agreements covering child support, custody, and visitation issues, either on their own or with the help of a mediator or family law counselor. If it’s possible, this is the best approach. Be mindful, however, that if the physical or financial well-being of your child is at risk, most courts will not consider themselves bound by your agreement, and may order modifications or additional obligations. Also, if court proceedings are likely, you’re unclear about your rights, or there’s conflict between you and the other parent over key issues involving your child, consult an experienced family law attorney.
It’s a good idea to approach your agreement with a spirit of flexibility and openness. Also, no custody, support, or visitation agreement—even one ordered by a judge—is ever permanently binding. An amount of child support that seems fair and adequate today may not be enough tomorrow. Custody with one parent may work brilliantly for a year and then sour. Your agreement must be a statement of needs and expectations that lays a solid foundation for the changes and additions that will surely come.
Included here are examples of two parenting agreements you can use as models to write your own:
• Parenting Agreement (Both Parents Are Legal Parents), and
• Parenting Agreement (Only One Parent Is a Legal Parent).
Be sure you both date and sign any agreement you reach and each keep a copy. It’s a good idea to have your signed agreement notarized if you anticipate any future need (in court or arbitration) to prove that the signatures on the agreement are not forged.
Building a Parenting Agreement That Works: How to Put Your Kids First When Your Marriage Doesn’t Last, by Mimi Lyster (Nolo), is an excellent resource for preparing and negotiating a comprehensive parenting agreement covering custody and visitation. We highly recommend you read this when preparing your own agreement.