Who Has Legal Child Custody When the Parents Aren’t Married?

September 24, 2022

Child Custody issues are difficult to settle no matter what the situation in the household is, but it is somewhat more straightforward if the parents were married. If the parents weren’t married, it becomes a more difficult scenario. Determining parentage plays a large role in how custody orders are handled when the parents are unmarried.

To fully understand custody arrangements in Washington State, you should understand how parentage is established, and what rights are attributed to each parent. You should also understand how Washington State views common law relationships.

Does Washington State Recognize Common Law Marriage?

In Washington State, there is no such designation as common law marriage. You are either married or you aren’t. For a marriage to have legal standing in Washington State, you must have a marriage license and a recognized marriage ceremony. That being said, Washington will recognize a common law marriage from another state if the other state authorizes the designation.

Married Parents and Child Custody Rights in Washington

Usually, when two people are married and have biological children, they will have equal rights to the child. These rights extend to time spent with the children and decisions regarding the children. Both parents have input into where the children live or attend school.

If only one of the parents is a biological or legal parent, the step-parent may have visitation rights depending on state legislation. Some states do allow step-parents to continue to have visitation rights if it’s established there was an existing relationship with the children, and it would be harmful if the relationship between the two ended.

Automatic Rights of the Mother

In the case of unmarried parents, the mother is typically recognized as the parent with custodial rights. This is the case provided the mother and father were never married to each other, and the mother wasn’t married to anyone else when the child was born. The automatic custody is also dependent on whether there is a current visitation order or custody arrangement in place.

In legal terms, a father who hasn’t established paternity has no legal rights to their children unless a court order. The courts don’t presume paternity, so unwed fathers aren’t automatically assumed to be the biological parent of the child in question. Unmarried can be prevented from having custody or visitation because they aren’t assumed to be biologically related to the child.

The system seems discriminatory against unmarried fathers. However, it’s in place to prevent unmarried mothers from naming anyone they know as the father in order to seek child support. Instead, establishing paternity allows the father to have rights before he has the responsibility of supporting a child.

Paternity in Washington State

Paternity is another word for fatherhood. Legally, establishing paternity means determining who the legal father of a child is and what rights and responsibilities that person has to that child. You must understand that while there is a biological father for every child, there is a difference between biological and legal when discussing paternity.

If the parents are married to each other when the child is born, paternity is automatically assigned to the husband of the biological mother. Often, this is the case when the parents are in a domestic partnership as well. The husband or domestic partner will be named the legal father, and the child’s birth certificate will indicate who the legal father is.

In Washington State, if the parents aren’t married when the child is born, there is no legal father until paternity is determined. When paternity is officially established, the birth certificate will be modified to reflect the father’s name. When paternity is established, the father will have rights to the child and will be legally responsible to support the child financially.

How to Establish Paternity in Washington State

There are two ways to establish paternity in Washington State. One way to establish paternity is to voluntarily sign the Voluntary Acknowledgement of Paternity form. The other way to establish paternity is through an involuntary court order.

Acknowledgment of Paternity

When both the mother and father are certain the father is biologically the parent of the child, voluntary establishment of paternity is possible. Both parents must sign the Voluntary Acknowledgement of Paternity form. Often, this is done when the baby is born. Parents can also get the form later from county health departments or a Division of Child Support Office.

Both parents must sign the same Acknowledgement of Paternity form while in the presence of a notary. After the form is signed and properly notarized, the form must be submitted to the Washington State Department of Health, Center for Health Statistics either in person or by mail. If the form is submitted within five days of the child being born there will be no fee for filing it. Once the form has been properly submitted to the Center for Health Statistics, the father’s name will be added to the child’s birth certificate and he will be deemed the legal father of the child.

Petition to Establish Parentage

The Petition to Establish Parentage method of establishing parentage is considered an involuntary method of establishing paternity. In this method, someone disputes paternity, and the court helps to establish the parentage of the child. The court issues an Order Establishing Parentage at the end of the court proceeding.

To involuntarily establish parentage, the father, mother, child, or the state can start the process of filing a Petition to Establish Parentage in the Superior Court in the county of residence for the child. If the child isn’t receiving public assistance, the state might help establish parentage if one of the parents applies for services through the Division of Child Support. If DCS accepts the case, a county prosecutor will act in the child’s interest to establish parentage and get a child support order.

If the father doesn’t appear in court after receiving notice of the court proceeding to establish parentage, the judge can declare him the legal father by default. If he appears for the court proceeding and both parties agree he is the biological father, the judge immediately declares him the father and issues an order to that effect.

If either parent is unsure of the paternity of the child, they can request an order for DNA or genetic testing. A DNA test requires the mother, father, and child to have a cheek swab performed. The samples are sent to a laboratory to be analyzed. The DNA test can establish whether the man is the biological father with 99.9% accuracy.

Should the DNA test establish the father as the biological father, the court issues an order to establish parentage. The order establishes the biological father as the legal father, and the child’s birth certificate will be amended to reflect the name of the legal father. The court can also issue orders for child support, visitation, and custody during the proceedings that establish parentage if it’s appropriate to do so.

Why Should You Establish Parentage?

There is more to establishing paternity than simply having a name in the father category of a birth certificate. All involved can benefit from the establishment of paternity.

Children can begin to enjoy a relationship with both parents. They can learn about their father’s family history, including medical history they may need later. They will gain access to benefits like medical insurance, life insurance, Social Security, Veterans benefits, and inheritance.

Mothers benefit from establishing paternity by beginning to share parenting responsibilities. The parents can begin to share the costs of caring for their child. The mother can petition for court-ordered child support once the process of establishing paternity is complete.

Fathers will obtain legal rights to their child such as custody or visitation rights. They can begin to show their child they care for them. Building a bond with the child is possible. The father can participate in the child’s life moving forward from establishing paternity.

How Will a Child Custody Battle Between Unmarried Parents Be Settled?

The result of a custody battle between unmarried parents depends on how unmarried child custody is handled. Usually, the court will issue an order for shared custody.

Typically, it’s uncommon for one parent to be denied visitation rights entirely. Circumstances like this would usually only happen if one parent was determined to be abusive or unfit to parent their children. The court would need strong evidence to indicate a relationship between the parent and child would be detrimental to the child’s wellbeing.

The father will need to establish his paternity of the child to be considered for visitation or custody. This is true if the mother disputes the paternity of the child or if the couple doesn’t live in the same residence. Once that paternity is established, the rights of the father are the same regardless of whether the parents are married or unmarried.

The parents should do as much as possible to remain cordial and willing to compromise in order to avoid a long custody battle. Another way to avoid battling over custody is to create an appropriate custody plan together and petition the court for approval. A custody battle is not in the child’s best interest, and parents should remember that when working out custody arrangements.

Call Today for a Free Case Evaluation From an Experienced Washington Child Custody Attorney

In Washington State, if the parents are unmarried, the mother is automatically assumed to be the custodial parent until paternity is established. The establishment of paternity affords the father the same parental rights as married fathers. If you have questions regarding establishing paternity or petitioning for custody of your children, the attorneys at the Aberdeen Law Firm could help you find the answers you need.

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