Child Custody When You Were Not Married

by Kathy Batesel

If you've recently separated and have children with a man or woman that you never married, child custody and visitation are important issues that you should never leave to chance.

My daughter separated from her fiancé a couple years ago. She was proud of how they worked together regarding my grandson. His dad sent money, though not often and not enough, but had stayed active in his son's life. My daughter felt happy about their close father-son bond despite living over a thousand miles apart.

This summer, dad took their son for visitation just like he did the year before. You can imagine the panic and extra expenses that set in when my child's dad told my daughter that he would only return their son to her if she "cooperated" with him - whatever that meant. (He refused to answer.)

Although I'm not an attorney, my daughter sought my advice. For eight years, my former husband and his ex-wife waged war over their daughter - a battle that caused unbelievable stress on everyone involved. We spent many thousands of dollars on custody and visitation issues on a case that was heard by judges in five different states. We experienced parental kidnapping, chronic interference with visitation, and witnessed incredible emotional abuse of his daughter during those years. I memorized laws, typed thousands of pages of transcripts, and communicated with our attorneys (ten of them at last count!)

My grandson is happily back at home now, but I've decided to write about the things single-again men and women should know if they have children with someone they didn't marry. By taking simple steps, untold problems can be prevented.

Wouldn't it be wonderful if we could predict all the future things that could affect how plan for important stuff - like taking care of our kids? But alas, we live in an imperfect world where people lose jobs, sometimes get angry at us for things that aren't our fault, or who don't act the way we think they should.

Your former partner is probably a great person. After all, you loved him or her at one time! But we're all human and we all fall victim to circumstances at times. You didn't anticipate breaking up the way you did, and trying to anticipate all the things that can happen between now and when your child is grown is an impossible task.

Even if you get along great when it comes to the children, there are dozens of problems you'll face in the coming years. You just don't know exactly what those problems will be. Many couples, even loving ones who are still together - disagree on what is best for the children at times. As your children grow, you and your child's other parent will be confronted with these challenges. Take a look at a small sampling of the kinds of things parents disagree on:

• Whether to pay for a child's first car.
• Whether to allow a child to drink a beer with the adults on special occasions.
• Whether to allow a child to take an extended out-of-state trip with someone the other parent doesn't know.
• Whether to pay for an expensive sports program.
• Whether to allow a parent's new boyfriend or girlfriend into the child's life.
• How the other parent disciplines the child.

There are hundreds of other topics that can raise the same kinds of disagreements and power struggles you've already experienced with your ex.

By taking action now, especially if you're on somewhat friendly terms, some of the most traumatic fallout from a breakup can be kept to a minimum. You'll need to become familiar with your state laws, possibly consult an attorney, and then discuss arrangements with your child's other parent.

Family law changes continuously. In some states, a father's must sign an affadavit of paternity before his name will be placed on a child's birth certificate. Other states allow a man to be named as the father on the birth certificate without a witnessed signature attesting that he's the infant's biological father.

Whether or not a man has signed this kind of paper, state laws recognize that both parents have equal rights to raise and care for their children, and a legal responsibility to contribute to the child's upbringing - which includes both the actual care and support of the child on a day-to-day basis as well as requiring the other parent to pay child support in many cases.

For parents who never married, this brings up the first important question:

Who has custody of the child? (For simplicity, I will use the singular "child" to mean one or more children.)

You might assume that since your child lives with you, that you're the custodial parent. However, some states specify that if there isn't a court decree appointing a primary caregiver, that there is no presumption of custody. This leaves both parents extremely vulnerable.

Does your state recognize common law marriage? Even in states that recognize common law marriage, couples who have cohabited for several years may not qualify. If they do, the state may expect them to comply with the same standards that a divorcing couple would face if they'd been married in a formal ceremony. These factors can affect what you can expect in your post-separation custody and child support issues.

Does your state distinguish between physical and legal custody? Physical custody refers to where the child physically lives, while legal custody designates rights to make decisions in the child's life. Most often, they go hand-in-hand. Either the parent with legal custody also has physical custody, or the parents share these rights and responsibilities through a joint custody arrangement.

How is child support being handled if there is no legal agreement? When a parent pays child support by cash, check, or money order because of an informal agreement or even a court order from another state, state laws sometimes say that the money only qualifies as a gift. They can hold the paying parent responsible for back child support even if the parent paid monthly payments equal to or higher than what the court would order. In Ohio, for instance, my ex husband was required to make up back child support of $1,000 for several months' worth of payments because he had mailed a check. He was told that in order to receive credit for his payments they had to be paid through the Child Support Enforcement Agency.

Besides going to court, can you obtain child custody and support in another way? Commonly referred to as Title IV of the Social Security Act, federal laws outline how states will administer their welfare programs. Part of the law requires states to establish paternity and child support for children, too. You can find out how to go about filing a claim by contacting your local Department of Health and asking them which department can help you. (It may or may be handled by the same office that handles Temporary Assistance for Needy Families.)

No state allows a parent to withhold their child from visitation for not paying support, and the amount of support never determines how much support will be ordered. Each state has child support guidelines and formulas. Many are available online that can help you understand what is reasonable to expect.

Most attorneys, including family law and divorce attorneys, will provide a brief telephone or in-person consultation to discuss your arrangements. Often, they can put their knowledge and experience to use for you in a way that can save you time and money later on.

For instance, at a couple hundred bucks an hour, it's far less expensive to plunk down $400 to have an attorney draft a motion (which is a request for a judge to make something a legal requirement), file it, and have the judge sign it while you're in agreement with your ex than it is to have a contested divorce with many motions, counter-motions, hearings, and possibly a trial. Even going to mediation can double or triple expenses.

If you are filing for Title IV child support, that order establishes what's called a "presumption" of custody. In other words, you get child support because the child lives with you. If you do find yourself in court later, the judge will be more likely to see the person receiving child support as the custodial parent. It's not foolproof, but it's better than nothing and might be enough. In this case, you won't necessarily need to consult an attorney. However, it's still a good idea because a legal pro that knows the laws well can tell you about things you may not have considered and that could affect you later on.

Not all attorneys are created equal. I can tell you that of the ten or so that my ex-husband and I worked with on his custody case, only two were truly excellent. The majority of them were competent, and a couple were simply lazy or arrogant. It was almost as if they assumed that once I paid them, they could just do things the way they wanted because I wasn't the legal expert.

When considering whether to pay at attorney's retainer fee, you should know what you're going to get. The retainer fee is a payment you make that will get used up as the attorney completes work for you. They'll normally tell you their retainer fee, and might tell you what they expect your total cost to be, but they rarely tell you what their hourly rate is. Go ahead and ask. This lets you review your bills to make sure he's not abusing your retainer. If his rate is $120 per hour, and he bills you for ten minutes on a phone call, then that call should be billed at $20, not $25.

Attorneys who are members of the American Academy of Matrimonial Lawyers (AAML) have to meet extra requirements to maintain their membership in the AAML. The very best lawyer my ex and I had was a member, and I will always seek an AAML lawyer first for family matters after discovering just how big the difference in their abilities are from most family law lawyers.

Finally, evaluate whether your attorney works more as a trial attorney or if he or she prefers to resolve differences through mediation and negotiation. If you think your ex is going to be angry and fight you if you try to address custody and support issues, then consider finding a legal pro that is comfortable with trial law. That doesn't mean you'll be going to trial, but if it ever does have to happen, you won't be burdened with a lawyer who delays, wants to file unnecessary motions, and messes around instead of getting the matter resolved promptly. (Indeed, our court system is set up to make adversaries out of parents that separate, though recent trends toward mediation may be changing this unhappy state of things.)

On the other hand, if your ex is someone who prefers to keep the peace, a less experienced lawyer may be fine and have a lower hourly rate.

A last word on attorney's rates: Cheaper doesn't always save you money! A very experienced lawyer may handle in an hour what a less experienced lawyer might end up billing fifteen hours for. You'd be better off looking for a more expensive lawyer that accepts payment plans than hiring the cheapest one you can find in many cases.

One of the hardest parts about establishing custody and child support arrangements is finding a way to discuss it without blame and negativity. Nobody wants to hear, "By the way, you need to start paying me a few hundred bucks a month" when they haven't had a chance to prepare and mentally work through how they can handle the extra financial burden. People often react to negative news by getting defensive and striking out with blame and anger.

It's almost inevitable that sitting down with your ex to negotiate these matters will be difficult, at best, but there are some things you can do to keep it from becoming a full-blown war:

• Set the tone with positive comments, and continue to use positive, affirming statements to keep things on track. "I know you love and want to provide for our child as much as possible." "I know that we've argued a lot but we both love our child. Can we set our personal differences to the side while we talk about what's best for him?"
• Use fair fighting techniques throughout your discussion.
• Ignore threats and false claims. I can't tell you how many times people talk about what the law says without really knowing what they're talking about. Often, they're just plain wrong. The judge is *not* going to place custody with a parent based on who did or didn't have an affair, for instance, but parents will use past behaviors to gain an upper hand. Instead of responding to such statements, simply say, "I understand what you're saying" and either ask to get back on track or end the conversation when you know it's not going to get back to a calm, rational discussion.
• Don't make false claims or threats of your own.
• Arrange to have this discussion in a public place like a park or restaurant if you expect argument, or conduct the whole discussion by e-mail (which also gives you a legal record of what took place in case you ever need one.)
• Send your child to a friend's or relative's house for the duration. They don't need or want to think about such things.

I wish I could promise that if you follow these steps, everything will work out just fine, but nobody can guarantee such a thing. I will say that the longer you wait to take care of support and custody matters, the more difficult they will be to get resolved. If you're on good terms when it comes to your children, please don't rely on those good feelings to last for the next five, ten, or fifteen years because you'll be putting yourself and your child at risk in the long run.

I wish you the best in your new life, and hope you've found this helpful. Here are some other resources you might find useful, too: