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Understanding New Jersey Custody Laws for Unmarried Parents

It is becoming frequently common for couples to have children outside the marital relationship, for a multitude of reasons. Part of it has to do with delaying marriage – part of it has to do with the relaxing of stricter moral or religious codes regarding sex prior to marriage. Regardless, when children are born outside the marriage, both parents still have a duty to care and support their children. However, there are certain New Jersey custody laws for unmarried parents that these individuals should be aware of in order to preserve their parental rights.

Establishing Parental Rights

The mother is always presumed to be the mother of the child, whether married or not. But for fathers, the New Jersey custody laws for unmarried parents include a requirement to establish paternity before any orders can be issued concerning custody, visitation or support. There is a multitude of ways unmarried parents can establish paternity. If the parties never marry, then the father will need to sign a voluntary acknowledgment of paternity. A certificate of parentage can establish paternity and can be executed at the hospital during the child’s birth. The parents will need to meet with a birth certificate coordinator who will explain the provisions and significance of the form. Then, they will need to present valid identification and fill out the certificate. Their signatures must then be witnessed by the coordinator. Of course, if the parents do not fill out the form at the hospital, it can be completed later at either a local registrar’s office or county welfare agency.

He can also file a lawsuit to establish paternity, where a court will determine that he is the father. The couple can marry shortly after the child is born and sign a legitimization form, or the father can agree to his name put on the birth certificate and agrees to support the child. The father can also welcome the child into his home and openly hold out the child as his own. However, it is also best to get a court order or acknowledgment of paternity on file to get rid of any question as to the paternity of the child. 

If there is some doubt about who the actual father of the child is, then DNA testing on the father and child may be required to ensure there is no doubt. This should also occur in situations where the mother is married to another man. That is because the law presumes that the person to whom the mother is married is the biological father of the child. Mothers can also bring a paternity lawsuit against the individual she believes to be the father. Once paternity has been established, then a father has equal rights as to the care, custody, and support of their child as the mother does. The child will also have the opportunity to secure rights for support.

Process of the Lawsuit

 To establish custody and parental rights for both parents, New Jersey custody laws for unmarried parents require an individual to file a complaint with the court. These complaints will usually address issues of either paternity, custody, parenting time, or child support, or some combination thereof.

Once the complaint has been filed, then there might be a consent conference, where the parents sit down with a court representative and try to reach an agreement. If the issues cannot be fully resolved, then the parties will appear before the judge who will make a ruling. The parents will also be allowed to request discovery, expert witnesses, or anything else that is common to family law litigation.

The process to determine custody rights, parenting time and support will then proceed in the exact same way as a dissolution of marriage lawsuit. Courts will adhere to the standard which focuses on the ‘best interest of the child.’ This includes looking at the child’s age, gender, educational or health needs, schedule and activities, the relationship between the parents, and other factors. The New Jersey Child Support Guidelines are utilized in determining child support as between unmarried parents. Courts will then determine the rights of each parent as to physical custody (or who the child will live with primarily), and legal custody, which deals with which parent has the right to make the significant decisions concerning the child. The status of the parents as unmarried will have no bearing on the issues pertaining directly to the child of the relationship.

Last Names and Unmarried Parents

Choosing which last name your child has can be a difficult process, especially since the mother will most likely have a different last name from the father. Parents want to have their child be identified as a member of their family unit. Traveling with a child who has a different last name can also be challenging, particularly on international flights. Border agencies have issued warnings asking parents to bring along birth certificates with their children if they do not share the last name, in an effort to prevent child sex trafficking across borders.

In the event an unmarried couple has a child and then separates, it is possible that one of the parents might wish to change the child’s surname. In most cases, the court will require the other parent to agree to the name change. If they do not agree, then the court can only order a name change if it is in the best interest of the child. The court can consider a variety of factors, including the reasons for changing (or not changing) the child’s name, the quality of the relationship of the child with each parent, how long the child has used their last name, the identification of that child as part of the family unit, and even what the child wants, depending on their age and maturity.

If you have any questions about New Jersey custody laws for unmarried parents, get in touch with the Law Offices of Peter Van Aulen for a free initial consultation today. Our team is standing by at 201 – 845 – 7400.


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