Unmarried Parents and Paternity


What are the rights of unmarried parents with respect to custody and parenting time?

The rights of unmarried parents are identical to the rights of married parents, provided that paternity has been established. For married parents, paternity is presumed and can only be rebutted by evidence that a man other than the husband is the child’s father. For unmarried parents, paternity must be admitted by both parties or proven to the court.

Obviously, unmarried mothers have full rights with respect to custody and parenting time because their maternity is established at the child’s birth. For unmarried fathers seeking custody or parenting time, however, proving parenthood becomes an issue.

Who must establish paternity?

Paternity is established through a filiation proceeding. In the context of custody and parenting time disputes, filiation proceedings are brought by the alleged father seeking custody or parenting time. If both mother and the alleged father admit in writing the facts necessary to establish paternity, and no other man challenges the alleged father’s paternity, then the alleged father may be afforded full parental rights. If not, then he must establish paternity by proof. After a successful filiation proceeding, the father may then bring a separate action for custody and parenting time.

What if the child is born while the mother is married to another man?

If the mother is married to and cohabitating with another man and the child was born during their marriage, the alleged father lacks standing to bring a filiation suit. In such a circumstance, only the husband or wife may initiate a filiation proceeding.

How is paternity established?

Paternity can be established in a variety of ways, including deposition of the mother, examination of witnesses and display of the child in court. As a practical matter, though, paternity is virtually always established by DNA testing. If one or more blood tests result in a cumulative paternity index of 99 or greater, the man is rebuttably presumed to be the father.