Breaking Up: Rights to Kids and Property When You’re Not Married

Couples that are not married and who go through a breakup face a unique challenge.  They often have to deal with two different courts to handle their two different issues: kids and property.

Children born by the mother during a marriage are considered under the law to be the lawful children of both partners.  This is true even if the father isn’t actually the biological parent. If the child is not his, it is his burden to prove, should he want to, that the child is not his. This is typically accomplished through DNA testing.

Conversely, children born to unmarried partners are considered under the law to be the children of only the mother unless certain steps are taken. Parents often mistakenly think that the birth certificate is determinative of paternity.  It is not. It proves nothing.  The burden of proving paternity remains with the father (absent an agreement and subsequent acknowledgement by the court).  On the other hand, a Voluntary Acknowledgment of Parentage signed by both parents is presumptive evidence of paternity and switches to the mother the burden of proving the dad is not the father.  Again, subsequent acknowledgement is needed by the court to make it official. 

That official step is called an Order of Paternity, the result of a paternity action in family court.

So what does this mean, practically speaking? It means that when an unmarried couple breaks up and no order of paternity is in place, whether or not a Voluntary Acknowledgment of Parentage has been signed, then the father technically has no rights to the children until such an order is established. Naturally, the mother can voluntarily allow contact (and should think long and hard about denying such contact if the father has been an active part of the children’s lives, as the court takes a very dim view on such unilateral and detrimental actions, whether or not there is an order of paternity in place, as such denied contact is not in any way in the best interest of the children, to say the least). Obviously, it is another matter if abuse is present.

Next, we will discuss the mechanics of establishing Dad’s rights to the kids in a paternity action.

What to do if you get stopped by the police

First of all: Be polite.  The officer is doing the job we pay them to do.  Usually, they do it politely and professionally.  Be nice to them and they will usually be nice to you.  The officer has a lot of discretion as his or her investigation unfolds, such as letting you go sooner rather than later, putting the cuffs on tightly or not, allowing you to go pee if you need to…  Also, if conditions require processing you, they often have the discretion to just issue you a flash citation (which just says that you must appear in court on a certain day) instead of taking you into custody, depending on the severity of the alleged crime.  They are also noting your behavior for the State in connection with a possible prosecution, and for the court.  The latter can have a direct effect on the conditions of your release, possible bail requirements, and, ultimately, the case’s final disposition.  Judges don’t like loudmouths that act like jerks when police are trying to do their job.

Besides, this is not the person to pitch your battle against.  The real fight, if there is to be one, will occur in court.  The officer in front of you is merely a minor cog in the wheel of justice.  Don’t waste your time or energy (or credibility) trying to convince them of anything.  If they are going to arrest you, insolence and threatening behavior is certainly not going to somehow win them over.  It will fall on deaf ears and merely harden their resolve.  

And don’t grovel.  Remember, their role is to serve us, and that includes you, even in these circumstances.  Treat them as the public servant they are.  Like someone you have hired to help keep your town safe.  Someone that works for you.  Be polite and patient.  Stay in control of yourself and the situation.

This doesn’t mean by any stretch of the imagination that you should consent to anything.  

As a defense attorney it is difficult to imagine any circumstances that warrant consenting to a request to search your vehicle or making admissions, or answering any but the most basic questions.  If you have been detained while in your car, politely provide the officer with your license, registration, and insurance card.  ALWAYS be able to put your hands on these documents quickly and easily. Otherwise, looking around for them will be perceived as fumbling behavior, possibly supportive of further investigation.  If circumstances require it or if you are at unease in any way, request that all further questions be referred to your attorney.  Write his or her number out and provide this to the officer.  This will stop them in their tracks and preserve the maximum amount of defenses available to you should you end up being arrested for something. 

Yes, this can feel awkward.  We usually feel compelled to answer their (well-rehearsed) questions, as we are taught from an early age to respond with answers to authority figures.  Get over that.  Subtly remind the officer that you are still in charge, asserting your constitutionally protected rights.  This immediately puts the officer on notice that you know your rights and that they should tread carefully; that you are not to be trifled with. Don’t answer questions about where you are going, where you are coming from.  None of that. Simply provide your name, an ID and, if appropriate, the car’s documents. 

In the next installment, we will continue this discussion…

Parent-Child Contact

Once a determination has been made regarding parental rights and responsibilities the court (or the parties) must then decide the parent-child contact (aka, visitation) schedule.  The legislature informs us that maximum contact between the parents and the child is in the best interest of the child.  This obviously assumes abuse is not an issue.  And visitation is every bit as enforceable as a person’s custody award.  The person with custody has no right to tell the other what the schedule is going to be. 

A typical visitation schedule, or benchmark, that is often used is one where the non-custodial parent gets the kids every other weekend, plus a mid-week visit or overnight depending on the distances involved, alternating major holidays, split school vacations and 2-3 weeks in the summer.  This is by no means what the court awards in every case.  But it is a sort of typical guideline.  Sometimes, the court can be persuaded to allow alternating weeks of visitation: One week at mom’s; one week at dad’s.  That is the exception, though, not the rule. Or giving the non-custodial parent three weekends per month; and/or weekends that go from Friday to Monday morning.  There are lots of possibilities. 

Sometimes the non-custodial parent wonders why they can’t have the kids every weekend since the other party has them all week.  Except in cases where very young children are involved, the court considers weekdays and nights to be filled with the hustle and bustle of school, work, homework, etc., and that weekends are down times to be enjoyed equally by each parent.

It is typical for the court or the parties to add the proviso “unless otherwise agreed to by the parties,” which means in practice you can do anything you both agree to, any schedule.  However, if push ever comes to shove, then what is written in the court order is what will be enforced. 

Other (minor) issues to iron out are drop off and pick up times and locations, as well as who drives which leg of the trip.  It is also sometimes a good idea to have a journal go back and forth with the (younger) kids so that assignments or doctor’s appointments or an update on the kids’ health can be relayed, especially if the parties aren’t always able to speak amicably with each other.

Once visitation is determined and the parties’ incomes are known, child support can be addressed.  That is the subject of our next blog.