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.