Parenting for Unmarried Couples FAQ

Answers to some common and frequent questions related to unmarried couples raising children together.

By , Attorney (Cooley Law School)

Does a Child Born to Unmarried Parents Qualify for Government Benefits?

Yes. All children qualify for government benefits that are related to the child's biological parents, which may include Social Security Survivor benefits. Survivorship benefits are available to children of deceased parents who qualify for Social Security credits through their work history, but die before collecting.

It's critical for you to ensure that your child's birth records correctly list both biological parents and that you resolve any paternity issues as soon as possible after the child is born.

If you've taken the above steps and your child's other legal parent dies, the government will pay the benefits to your child. However, if you fail to establish paternity and try to collect the benefit, the government may reject your claim.

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When an Unmarried Couple Has a Child, Whose Last Name Does the Child Take?

With a few exceptions, most states allow parents to choose their child's name, without restriction. Unmarried partners can decide to choose one parent's last name, hyphenate both last names, or create a new last name that combines both parents' names. Or, you might want a name that doesn't involve either parent's last name. If you select a name and decide to change it later, you may contact your state's Department of Vital Statistics for more information.

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Can an Unmarried Couple Adopt a Child Together?

You'll need to check your state laws to verify if you and your unmarried partner can adopt children together. Most states do allow couples to adopt, regardless of marital status, but the process may be more daunting than a typical adoption if you're unmarried. Once your adoption is final, both parents will be legal parents and share equal rights and responsibilities for the child.

The biggest unknown for unmarried couples who wish to adopt comes when you utilize the services of a private or public adoption agency. Historically, adoption agencies have been very selective and disfavored unmarried couples. If you're hoping to be successful using an agency, you'll need to meet all your state's adoption requirements, and you should be prepared to explain why you're not married and demonstrate that you can provide a stable home for any adopted children.

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If a Parent Partners with Someone Who Isn't the Child's Other Parent, Can the New Partner Adopt the Child?

Many states allow couples to request a "second-parent adoption," which is where one partner legally adopts the other's biological child. If the couple is legally married, the court refers to the adoption process as stepparent adoption. While stepparent adoption still requires the couple to go through the adoption process, it's usually less challenging because the court recognizes the legal relationship between the spouses.

Before you can be successful with a stepparent or second-parent adoption, the court must ensure that the following is true:

  • both biological parents consent to the adoption
  • the noncustodial biological parent is deceased, or
  • the court terminated the noncustodial parent's parental rights due to abuse, neglect, or abandonment.

State law favors biological parents and their parental rights. If the noncustodial parent is involved in the child's life and doesn't consent to the adoption, it's unlikely that the court will approve the adoption.

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Can Both Unmarried Partners Claim Their Child on Their Separate Tax Returns?

No. Like divorced parents, the law only allows one partner to claim the child per tax year. Most divorce or custody orders address the issue of tax exemptions, and usually, the custodial parent will take the tax credit.

Unmarried partners should consult with a tax attorney to determine who should take the credit. Typically, it will be more financially advantageous for the parent who earns more income to claim the child. Of course, unless there's a court order that states otherwise, parents can agree to any arrangement they feel is best for their family.

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Who Can Sign School Permission Slips and Make Medical Decisions for the Child?

If the biological parents are no longer together, but share joint legal custody, then the legal parent has priority over a new spouse or partner to make medical decisions for your child. If you have a good relationship with the other parent, it's possible that the three of you can work together to ensure you meet your child's needs, but if you disagree, the court favors the opinion of the biological parent over an unrelated parental figure.

Schools generally require that legal parents or guardians must sign permission slips for school events—unrelated individuals usually can't sign off on field trips or other educational activities that require parental consent. However, most schools allow parents to add unrelated family members to the children's emergency card, which may enable a non parent to pick up the children from school and call to obtain information for the child.

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When Unmarried Parents Separate, How Does the Breakup Affect Parenting Rights and Responsibilities?

Breakups are tough, especially when children are involved. If both parents are legal parents—through birth, paternity, and/or adoption—then both will continue to enjoy equal rights and responsibilities for the children. Typically, the couple can work out a custody, visitation, and child support arrangement without taking legal action. However, if either parent disagrees with the other, the parents will need to file a custody motion with the court.

If one partner is not a legal parent of the child, that partner may not have any parental rights. Ideally, if an unmarried partner wants to remain in the child's life, both parties will create an agreement that outlines parenting time and other rights and responsibilities for the unrelated parent. However, if the child's biological parent decides not to honor the agreement, you may need to seek advice from an experienced attorney to determine if there is any other recourse.

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What Steps Must Unmarried Parents Take to Ensure They Are Both Considered the Legal Parents of Their Child?

The most effective way to ensure that both parents are recognized as legal parents is to add each parent to the child's birth records. You can add both parent's names to the birth certificate at the time of birth or by contacting your local Department of Vital Statistics.

It's important to understand that the law only permits the legal parents to be on the birth certificate. Most states require unmarried fathers to confirm paternity by signing an affidavit or acknowledgment of paternity. Typically, once you sign this document, the court will use it as a verification of paternity, so don't sign it if you're unsure that you're the biological father.

If you're in a same-sex relationship and unmarried, the requirements for becoming a legal parent may be a little more complicated. If you're unsure of what steps to take, you can find more information in Nolo's book: A Legal Guide for Lesbian and Gay Couples.

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