By: Brette Sember
The world around us is changing and that is obvious when so many couples are opting not to get married and have children. According to the latest statistics by the U.S. Census Bureau, the trend is on the rise for couples to stay together, but not marry and have children. In addition, with the increase of same-sex partners having children, both biological and adopting, this can raise all sorts of questions. Some of these need to be answered as soon as the couple decides to bring children into their relationship.
But where to look?
Brette Sember, former family law attorney and mother, offers a wealth of information in her new book Unmarried with Children. She sat down with HMC to give insight on what parents should know about their legal rights when it comes to their children and custody.
Your most recent book “Unmarried with Children” has incredible information. Tell me what was the catalyst for you to write this?
In my former life, I was a family law attorney. The number of unmarried families that go through Family Court is huge. It was clear to me this was a huge section of population that is virtually being ignored by parenting magazines, sites, and self-help books. I wanted to provide some information for these families and let them know they are not ignored.
You’ve got solid legal information on how to protect your parental rights as a single parent. With the growing singles/unmarried couples having children, what are the main three things that are different between a married and unmarried/single parent(s) legally?
The biggest difference has to do with legal parentage. If a couple is married, the husband is automatically the legal father of the child without any action being taken by the couple. If a couple is unmarried, the father must legally acknowledge paternity or it must be decided by a court for him to become the legal father of the child.
Married parents do not need to have custody decided. If parents are unmarried and living separately, schools and physicians want to know who “has custody” – who is legally authorized to make decisions and pick up the child. Although an unmarried couple might be in complete agreement about how to share time with their child, they really do need a court order that defines this so that there isn’t any confusion.
An unmarried couple has no right to spousal support from the other partner, whereas a married couple does. “Palimony” is difficult to prove and not an option for most people.
So many people worldwide are choosing to be single or unmarried parents. What do you think has helped people make the distinction between parenting and marriage?
I think that we are living in a culture where to some marriage has become suspect, or simply unneeded. Many of today’s young adults grew up in single parent homes, with just one parent on the scene most of the time. They don’t see marriage as a necessary element of parenting. I also think that today people want things quickly and simply. Weddings are time consuming and expensive, so many people simply move in together and think they will get married someday. A baby comes along and it doesn’t really change their feelings about a wedding. I also think that Hollywood has been a big influence. It is practically the norm in Hollywood to not get married when you are having a baby.
What are three main things that are legally the same when comparing the above groups?
Mothers are always the legal parent of a child with or without marriage. Both married and unmarried families can go to family court for help with custody and child support issues. Married or unmarried status has no impact on how custody is decided.
Why do you think so many parents don’t read about their legal rights prior to having children?
Before you have a child, there is no conflict and therefore most people have no reason to look into this. The conflict usually only arises once there is a child and the parents disagree about how to share time.
Why do you think many parents avoid drawing up their wills or appointing guardianship for the children?
No one wants to think about their own death. Many people also assume that the person they would want to have guardianship will automatically get it, when that is not the case at all.
What are some of the most common mistakes parents make when assuming what their parental legal rights are?
People still think that mothers get preference over fathers when it comes to custody and that is not generally the case. People think that if they put the father’s name on the birth certificate that that legally determines custody. They also think that if they leave his name off that he can’t get custody.
What are the essential legal things a parent should have in place even before a child is born or shortly following?
A will is very important. You want to choose a guardian for your child. You can only make your recommendation – the court will make final determination should you ever pass away. It’s important to state your reasons for your selection.
Unmarried parents need to have paternity acknowledged as soon as possible. If the parents do not cohabitate, it is a good idea to get a court order indicating what their custody agreement is. If they plan on having a child support arrangement, it is a good idea to also have that formalized with a court order (if you don’t have an order and exchange child support it can be considered income or a gift by the IRS)
If your partner is not your child’s legal parent, it is a very good idea to execute permission for him or her to seek medical treatment for your child, so that there is no hold up if you can’t be located.
I think the most important thing that people need to keep in mind is that every time a child is born, a family is formed. Whether the parents are married or not, together or not, they are still a family. In the eyes of that child, that is the only family he has. The family deserves to be respected and treated in an equal way as other families.
Brette Sember is a former family law attorney, mother of two, and award-winning author. She is the author of over 30 books including How to Parent with Your Ex, Gay and Lesbian Parenting Choices, and The Divorce Organizer & Planner. Her web site is www.UnmarriedWithChildren.net