Parenting for Unmarried Couples FAQ

Unmarried couples who want to raise children face some unique parenting issues.

Does a child born to unmarried parents qualify for government benefits?

Every child is eligible for government benefits related to the child's biological or legal parents, including Social Security survivorship benefits, government pension benefits, and the like. The key is to ensure birth certificate and paternity issues are resolved as soon as, or shortly after, the child is born.

Once that's done, you can be assured that, if tragedy strikes you or your partner, your child will be covered. If you neglect to establish yourself as a legal parent -- for example, by failing to put your name on the birth certificate -- and your child seeks government benefits after your death, the agency may deny his or her request because there isn't any proof that you were the parent.

When an unmarried couple has a child, whose last name does the child take?

In the vast majority of states, when it comes to baby names, anything goes. This includes first, middle, and last names. You don't have to give the baby the last name of either parent -- for example, Mary Jones and Jack Brown can name their child Sunrise Smith. You may opt to hyphenate both of your last names, give the child one of your last names as a middle name -- or decide later and amend the birth certificate to reflect your new choice. (You can amend a birth certificate by contacting your state's Department of Vital Statistics, which you can locate through the website of the National Center for Health Statistics.)

Can an unmarried couple adopt a child together?

In many states, they can. Unfortunately, even in states that permit joint adoptions, some social service and government agencies discriminate against unmarried couples. An unmarried couple can expect to do a bit more work to prove that their home is a stable and healthy environment for raising children. It's wise for any unmarried couple to consult a good family lawyer to get some practical guidance before moving ahead with adoption plans.

If an unmarried couple jointly adopts a child, they will both be legal parents. This means that each partner has equal legal responsibilities to raise and support the child. And, if the partners ever separate, each has an equal legal right to petition a court for custody or visitation of the child, as well as an obligation to provide child support.

For more information on adoption, see the Adoption area of Nolo's website.

If a parent partners with someone who isn't the child's other parent, can the new partner adopt the child?

This is commonly called a "second-parent adoption" or, if the couple does marry, a stepparent adoption.  Where the adopting couple is married, these adoptions are approved pretty readily, because the couple's relationship is legally valid and the child is already in the home and will stay there even if the adoption is denied.

A number of states, however, still frown upon second-parent adoptions by unmarried couples, so a partner who wishes to adopt without marrying should consult a local family law attorney to get an up-to-the-minute evaluation of the law.

This type of adoption can't take place unless one of the following is true:

  • Both of the child's legal parents consent.
  • The noncustodial parent is deceased.
  • A  court has found the noncustodial parent to be unfit to raise the child.
  • A cout has found the noncustodial parent has abandoned the child.

If the noncustodial parent is the father, a social service agency will determine whether he has abandoned the child or whether his consent is needed before a second-parent adoption can take place. A father who signs a paternity statement, provides support (if he can), and maintains a relationship with his child is not in danger of the child's being adopted by someone else without the father's consent.

If the noncustodial parent is the mother, the social service agency will have to obtain her consent or recommend that her parental rights be terminated. Unmarried mothers without custody must pay support if they can and visit the child -- or risk losing the child to a second-parent adoption.

Can both unmarried parents claim their child on their separate tax returns?

Taxes affect unmarried people with children much in the same way they do divorced partners -- only one person can claim the child as a dependent. This doesn't mean that only one parent is entitled to claim the child, just that only one person can legally take the exemption in any given tax year. How to decide who gets the tax break? That's easy. The parent whose income is in the higher tax bracket will get a bigger tax savings. Parents can agree in advance, and in writing if they prefer, on how to split the return.

Can a person who isn't a parent, but who plays a live-in parental role, take care of tasks like signing school permission slips or making medical decisions for a child?

That depends on several factors. First, is the other legal parent in the picture? If  the other parent  shares joint legal custody with your partner, chances are that person has priority for making medical decisions. Hower, the nonparent may be listed as an emergency contact on school and other important records, in case a legal parent isn't available to make decisions for the child.

Regarding school permission slips, nonparents face restrictions here. Schools are legally responsible for the children in their care. As such, they are permitted to accept signatures only from legal guardians. A legal guardian could be a foster parent or anyone who has legal custody of a child. An unmarried partner of a legal parent probably does not qualify.

Nonparents may be allowed to pick up a child from school (or day care) if a legal parent informs the school that this will be happening either regularly or on a particular occasion.

To maximize what a nonparent caretaker can do, the legal parent should contact school and other authorities to find out what rights are available and what procedures are required to establish them.

When unmarried parents separate, how does the breakup affect parenting rights and responsibilities?

If both partners are legal parents of the child -- either because they are both biological parents, because they have jointly adopted, or because a nonbiological parent has obtained a legally valid second-parent adoption -- both parents usually have an equal right to custody of the child. This means that neither parent may deprive the other of physical custody or visitation unless a judge makes an order granting sole custody to one parent. If a court does grant one parent physical custody, the other parent is usually entitled to visitation and is next in line to exercise physical custody rights if the custodial parent becomes unable to care for the child.

Of course, the right to be considered a full legal parent of a child can be lost if a parent fails to exercise parental responsibilities. For example, all legal parents have a duty to support their children, whether or not they have physical custody of them. The key is that, if you are not the parent with custody, you must stay involved with your child -- visiting and providing support -- to the best of your ability.

Legal parents can learn more about custody, visitation, and child support laws by visiting the Child Custody, Child Support & Visitation area of Nolo's website.

If a partner is not a legal parent of the child, the partner may not have any legal rights to parent or even visit the child after a break-up. Ideally, if a partner wants to continue to be part of the child's life, both members of the couple will make and honor a workable agreement about how each will continue to parent, including how they will handle visitation and support.

If separating partners can't reach an agreement and one of them wants to petition a court for visitation, the outcome will depend on state law. Not long ago, almost all states would have denied a nonlegal parent any right to see the child of a former partner, no matter how close the parent had been to the child while they were living in the same house, but this rule is changing as many state courts recognize that the best interests of the child may make visitation with a nonlegal parent desirable. Because this area of the law is in constant flux, you'll want to research your state's law or visit a good family law attorney for guidance.

For more information on parenting for unmarried couples, see Living Together: A Legal Guide for Unmarried Couples, by Ralph Warner, Toni Ihara, and Frederick Hertz (Nolo), or A Legal Guide for Lesbian & Gay Couples, by Denis Clifford, Frederick Hertz, and Emily Doskow (Nolo).

What steps must unmarried parents take to ensure that they are both considered the legal parents of their child?

To make sure that a child's biological parents are also the legal parents, both mother and father should be listed on the child's birth certificate. If you want to add a parent's name to a birth certificate, contact your state's Bureau of Vital Statistics. You can find this contact information by visiting the website of the National Center for Health Statistics (click on the link "Where to Write for Vital Records," part of the "NCHS Top 10" list on the right).

In order to be listed on a child's birth certificate, most states require unmarried fathers to sign an affidavit or acknowledgment of paternity. In any case, it's a good idea for both parents to write, sign, and notarize a statement acknowledging the father's paternity. You can take this one step further by contacting your state's Vital Statistics office and asking whether they keep paternity statements on file. If they do, make sure yours is filed. The declaration operates as a judgment of paternity in most states.  

Rules for same-sex couples can be different in some circumstances. For more, see Lesbian & Gay Adoption and Parenting.

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