If Both Parents Are on the Birth Certificate But Not Married, Who Has Custody?


In today’s evolving family structures, it’s not uncommon for couples to have children without being legally married. When both parents are listed on the child’s birth certificate but aren’t married, questions often arise regarding custody and parental rights. This article explores the legal aspects and considerations surrounding custody in such situations.

The Birth Certificate and Legal Parenthood

A child’s birth certificate serves as an essential legal document that records the child’s birth and identifies their parents. When both parents are listed on the birth certificate, it acknowledges them as the child’s legal parents. However, being named on the birth certificate does not automatically establish custody or determine parenting time.

Legal Differences Between Marriage and Non-Marriage

Marriage provides certain legal presumptions about parental rights, but when parents are not married, these presumptions don’t apply. As a result, questions about custody, visitation, and parental rights become pertinent.

Establishing Custody

When unmarried parents have a child, it is crucial to establish legal custody arrangements. This can be done in several ways:

1. Voluntary Agreement

Parents can reach a voluntary agreement regarding custody, visitation, and child support. This can be a relatively straightforward process, but it’s essential to have the agreement in writing and approved by the court to make it legally enforceable.

2. Court Order

If parents cannot agree on custody and visitation, they may need to seek a court order. The court will consider the child’s best interests when making custody determinations.

3. Mediation

Mediation can be a helpful option for resolving custody disputes without going to court. A neutral third party assists parents in reaching an agreement that is then presented to the court for approval.

Factors Considered by the Court

When a court is involved in determining custody for unmarried parents, it considers various factors, including:

  • The child’s age and developmental needs
  • Each parent’s ability to provide a stable and loving environment
  • The child’s relationship with each parent
  • Each parent’s ability to support the child’s physical and emotional well-being
  • Any history of domestic violence or substance abuse

Legal Rights of Unmarried Fathers

Unmarried fathers have legal rights and responsibilities concerning their children, including:

  • The right to seek custody and visitation
  • The obligation to pay child support
  • The right to be involved in important decisions about the child’s upbringing


In cases where both parents are on the birth certificate but are not married, determining custody and parental rights is essential. Whether through voluntary agreement, mediation, or court order, it’s crucial to establish a clear custody arrangement that serves the best interests of the child. Consulting with an attorney who specializes in family law can be invaluable in navigating these complex legal matters.


1. Can unmarried parents have joint custody of their child?

  • Yes, unmarried parents can establish joint custody through a court-approved agreement or court order.

2. What factors does the court consider when determining custody for unmarried parents?

  • The court considers the child’s best interests, taking into account factors such as the child’s age, the parent’s ability to provide a stable environment, and the child’s relationship with each parent.

3. What rights do unmarried fathers have regarding their children?

  • Unmarried fathers have the right to seek custody and visitation, the obligation to pay child support, and the right to be involved in important decisions about the child’s upbringing.

4. Do unmarried parents have to go to court to establish custody?

  • Not necessarily. Unmarried parents can reach a voluntary agreement, which, when approved by the court, can establish custody without a formal court hearing.

5. How can mediation help unmarried parents in custody disputes?

  • Mediation provides a neutral third party to assist parents in reaching a custody agreement outside of court, often leading to more amicable resolutions.

Read More: https://www.courtsandchildren.org/

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