Child Custody: What if the Parents are Unmarried?

Parenting arrangements are among the most important issues that you need to discuss when separating or deciding to break up. But what if the parents of the child are unmarried?

A family breakup is a traumatic time for children. The loss of stability and increased uncertainty creates fear and a sense of helplessness. Whatever the challenges you face, for your children it can be worse since they are passive subjects of your partner and your choices. To reduce this uncertainty, you need to discuss and agree on a parenting arrangement.

Is parenting time to be divided, is it shared equally or not, split, is one the primary parent, does that make the other secondary (i.e. access parent), what happens on holidays, what happens when there’s no school, is the arrangement an interim, temporary one or can you make a long term one, etc.? Is parentage an issue? You get a feel that parenting is not like dividing furniture or property.

If you’re in a situation where you are separating from your partner, it is important that both of you ensure that you know the factors the court considers because if this is ultimately the direction you go, those of the factors the court looks at to decide. Even if you don’t go to court, knowledge of legal considerations will help structure your discussions with your ex-partner.

How are Parental Rights Established?

The birth parent is recognized as a parent. The birth parent is the person who gives birth to a child. A person whose sperm resulted in the conception of a child conceived through sexual intercourse is also recognized as a parent unless other factors counter this presumption.

Several presumptions govern how a parent is determined. A presumption is a conclusion a court can make provided there is no valid reason for claiming the presumption shouldn’t apply. So a court will presume a person is a parent because:

A person was the birth parent’s spouse (married or common-law, i.e. in a conjugal like relationship) when the child was born.
The person was married to the child’s birth parent by marriage terminated by death or was nullified within 300 days before the birth or by divorce.
The person was living in a conjugal relationship with the child’s birth parent before the child’s birth and the child was born within 300 days after they cease to live in a conjugal relationship.
The person has certified at the child’s birth as a parent of the child under the Vital Statistics Act or similar act in another jurisdiction in Canada.
The person is found or recognized by a court of competent jurisdiction outside of Ontario to be a parent of a child.

These are presumptions that can be refuted if the contradictory evidence showing the presumptions are not valid can be established.

If circumstances give rise to more than one presumption, none of the presumptions will apply.

Simply providing sperm as reproductive material or an embryo for use in conception of a child through assisted reproduction will not determine a parent unless he or she is a parent under the other criteria. For example, the presumptions will not apply to a person whose sperm is used to conceive a child through sexual intercourse if, before the child is conceived, the person and the intended birth parent agree in writing that the person does not intend to be a parent of the child. This happens in the case of assisted reproduction. To be excluded as a parent there would have to be a written agreement so that effect before the child is conceived. Accordingly, a casual encounter that results in a child would not allow you to deny parentage which carries with it the obligation to pay child support.

The case of assisted reproduction involves special considerations. The parties usually enter into detailed agreements that deal with a host of issues, including parentage. In cases of assisted reproduction, whether by natural or artificial means, you should speak with a lawyer before proceeding.

If the couple is married, establishing their parental status is straightforward most of the time. Both parents automatically are considered the child’s parents. For unmarried parents, it can be challenging, although this is not in every case of unmarried couples. To be sure, in common-law situations where a couple is in no less a stable relationship as a married couple, parental status is established just as it is for married couples.

But if paternity is not established because of the relationship, the unmarried parent may have to establish parental status. Even if the person is the biological father of the child and plays a paternal role in the life of the child, establishing paternity is still necessary. It is different for mothers because their status is established in most cases by reason of being the birth parent. However, that status can be changed, such as when a surrogacy situation is entered into, i.e., where a woman carries the fetus to term on behalf of a couple who will become the legal parents when the child is born.

To establish the parental status after birth, a Statement of Live Birth form is filled out and signed by both parents. However, if for whatever reason the father is not named on the Statement of Live Birth, he may need to file a court application to establish parental status. Usually, genetic testing is needed so that the paternity can be confirmed.

When the father of the child has been able to obtain paternal status, then he can now pursue parenting of the child in the same way that the mother could. He will also have the obligations for support.

Factors that Determine Child Custody

Parenting arrangements can be different in every case. There is no one fit for all cases. Parents are free to reach any arrangement that suits their circumstances and can do this in an out of court process, such as mediation, collaborative or traditional negotiations, keeping in mind that the court has ultimate oversight over any arrangement. In most cases where parents reach voluntary arrangements, they can live with, it will be rare that a court would interfere. In fact, considering how bitter parental disputes can become in court, the preference is that parents work out arrangements themselves. However, the court will become involved in cases where the parents cannot reach a parenting arrangement on their own and need a judge to fix the arrangements.

There are several factors that the court considers when deciding parenting arrangements. The guiding principle is the best interests of the child; this directs the court to consider the child’s overall needs and circumstances, including:

The love, affection and emotional ties between the child and each of the parents.
The length of time the child lived in a stable home environment.
The ability of the parent to provide guidance, education, necessaries of life and meet special needs.
The proposed plan for the child’s care and upbringing.
The permanence and stability of the family unit, the ability to act as a parent, and the familial relationship between the child and the party to the application.
The child’s views and preferences, presuming the child can express them clearly (without the parent’s influence).
History of domestic abuse or violence, if any.

Options for Child Custody

Considering these multiple factors, the judge may grant sole or some form of shared parenting. Parenting and making critical decisions (formerly called custody) can be separated. So for example, the child may live with one parent primarily and spend less time with the other parent (formerly the access parent), but when it comes to making decisions regarding education, health or living the parents may still make these jointly or, alternatively, decision making responsibilities could be split, one parent responsible for decisions in one area, say education, and the other parent for another area, say health.

In cases of domestic violence, a parent could be subject to restricted or supervised access to a child. Domestic violence will impact on the perception of the parent’s ability to parent, particularly if the child has been exposed to the incidents of violence. If there is a history of domestic violence you may expect as part of any parenting plan to show what is being done to deal with the violence.

Next Steps to Take

If you and your partner have decided that separating is the best option for both of you, it is helpful if you can maintain open and respectful communications with each other.

If you can reach a workable arrangement with your partner, then you can see a lawyer about putting that arrangement into a legal separation agreement. If you and your partner cannot reach an agreement, that may not mean that an out of court agreement is not possible, but it is best that you consult a family lawyer. At that point, you can ask questions about what your next step should be. While a court application may be necessary to start the process, often court cases end in settlements.

As much as possible, try to reduce stress and anxiety for your child. Keep in mind that whatever disagreements or arguments you have with your partner, your child should not be drawn into the dispute. Do not at all costs use your child against your partner. Do not try to influence the child to take sides. You must always keep in mind what’s best for the child, even if this can mean you have to make sacrifices.

Final Thoughts

A break-up is going to be emotionally draining. And if you can’t reach a parenting agreement, the situation will likely become more stressful. Be prepared for the challenges that will come your way. To ensure that you are doing the right steps, consult with a family lawyer so that you can receive guidance. A lawyer can also direct you to other resources and professional assistance available for steering through the challenges that arise in a parental dispute. Above all, do not be afraid to reach out.

If you have any questions about your situation and parenting arrangements, feel free to give me a call for more information.