Who Has Custody of a Child When the Parents Are Not Married in New Jersey?

As hard as it is for some divorcing couples to resolve child-related legal issues, the task can be even more difficult for New Jersey parents who were never married. Unmarried parents often have additional steps to take before they can resolve any disputes regarding child custody, visitation, and child support. One of the first steps is to establish the father’s paternity—without paternity being established, a man will not have custody or visitation rights. If you think you are the father, you should trust but verify that fact and get a paternity test anyway to be 99.9% confident.  If you “assume” you are the biological father, then you will be obligated to pay child support, in addition to custodial and parenting time rights. In any event, once paternity is established, both parents have equal rights to custody in the eyes of the law.


Establishing an Unmarried Father’s Paternity in New Jersey

There is more than one way to establish paternity. How it is established will depend on the parents’ unique situations.

Certificate of Parentage

In New Jersey, paternity can be established at the time of a child’s birth. If the biological parents are in agreement regarding the father’s paternity, they can sign a document known as a Certificate of Parentage (or informally as an “acknowledgment of paternity”). Signing this certificate gives the father the same parental rights and obligations as a father who is married to the mother at the time of his child’s birth. This includes the right to seek custody and visitation and the obligation to provide financial support for the child. Once both parents sign the Certificate of Parentage, the father’s name can be included on the child’s birth certificate as well. As outlined by the New Jersey Department of Human Services, in order to use a Certificate of Parentage to establish paternity at the hospital, parents need to:
  • Meet with the birth certificate coordinator to go over the form
  • Present valid identification (for both parents)
  • Fill out the certificate
  • Have their signatures on the form witnessed by the birth certificate coordinator.
If you did not complete a Certificate of Parentage before leaving the hospital, you can complete the form later at your local registrar’s office or county welfare agency.

Court-Ordered Paternity Test

When a mother or presumed father disputes biological parentage and signing a Certificate of Parentage isn’t an option, either parent can request a court-ordered paternity test. This can be done at the time of birth or at any other time during the child’s life. In New Jersey, paternity tests are conducted by taking DNA samples from the potential father and the child using cheek swabs.

Unmarried Fathers’ Rights in NJ and Child Custody

After you establish that you are the child’s father, then you can turn your attention to the issue of child custody and visitation rights, which you now have the right to seek. General types of custody include legal custody and physical custody.

Legal Custody

A parent with legal custody has the right to make major life decisions for their child related to health care, education, and other areas. When joint legal custody is established, it means that both parents share in those decision-making responsibilities. In some, but very rare situations, legal custody may be given to only one parent.

Physical Custody

Physical custody has to do with how much time the child spends with each parent. Joint residential custody for unmarried parents could mean a child spends half the time with one parent and half the time with another. However, due to practical and logistical concerns, it is more likely that one parent will have primary physical or residential custody and a more pragmatic parenting schedule will be negotiated between the parents in the best interest of the child. In this scenario, the other parent will have visitation rights (also called parenting time) according to a set schedule that works for both parents and most importantly, the child.  Yes, we have all heard about one parent getting every other weekend, for example, but that is by no means the default or the norm.  In addition to a regular cadence for a schedule, the protocol for vacation s and holidays on top of the regular schedule also needs to be discussed. Parents can still exercise joint legal custody, even if physical or residential custody is not truly 50/50.

Parenting Plan

If you and the other parent are in agreement on custody arrangements, you can develop a parenting plan, put it in writing, and submit it to the court for approval. Your parenting plan should include detailed information about each parent’s child-rearing responsibilities, how each parent will contribute to raising the child, and a parenting time schedule that includes when the child will be with which parent for both a regular schedule and the holidays and vacations, as well as who is responsible for transportation for pick up and drop off. A detailed parenting plan will provide much-needed stability for your child and potentially help prevent contentious disputes in the future.

What Happens if You and the Other Parent Cannot Agree on Custody Arrangements?

If you and your co-parent cannot come to terms with your parenting plan, you may need to go to court and ask a judge to intervene. However, before going this route, it is important to explore the various alternatives that are available:
  • Have you each hired your own attorneys to help you negotiate a plan you can agree on?
  • Have you tried mediation, which the judge may mandate anyway if your dispute goes to court?  There are both pro’s and con’s about mediation and it is not always the best approach for everyone; it is best to speak to our office or look on our page for other information about whether mediation is best for you given your particular predicament.
Usually, both parents will eventually see that it is in their best interests to find a way to reach an agreement. But if an agreement is simply not possible, your custody arrangement will be decided by the judge based on the best interests of the child. Under the law, judges must consider a long list of factors in making custody and visitation determinations. You can read what they are here: NJSA 9:2-4(c).

Parental Rights & Parental Responsibilities

With parental rights come parental responsibilities, and this includes the responsibility to provide financial support for the child. In New Jersey, providing financial support is a requirement in all scenarios, whether the parents are married, unmarried, separated, or divorced. In most cases, parents’ financial obligations are determined according to the New Jersey Child Support Guidelines, although it may be appropriate to deviate from the guidelines under certain circumstances. If you are a parent who expects to pay child support, our New Jersey family lawyer can help you understand this responsibility, and ensure the incomes utilized in the calculation are accurate for both parents, whether imputed income needs to be discussed, and ensure any other considerations (like daycare costs and/or health insurance for the child) are included in the child support calculation. Learn More about the Parental Rights of Unmarried Parents in NJ 

Speak to an Experienced Bergen County Family Lawyer

For married couples, establishing parental rights is automatic — but that is not the case for unmarried parents in New Jersey. Establishing child custody rights involves some unique legal issues when you are unmarried. Whether you are an unmarried father or mother, it is likely you could benefit from speaking with an attorney about solidifying your parental rights and ensuring that your partner or former partner meets her or his legal obligations. We can answer all of your questions about child custody for unmarried parents in NJ. Our family law attorneys in Hackensack offer personalized and compassionate legal representation for all New Jersey parents. If you would like help in establishing paternity, putting together a parenting plan, or making sure you protect your rights regarding child custody and child support, we encourage you to contact us for a confidential initial case evaluation. To speak with an experienced child custody attorney for unmarried parents, call [MFR] Men’s & Fathers’ Rights Divorce Lawyers at (201) 880-9770.

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