Many parties often wonder if unmarried mothers have custody rights. It is important to note that the family court provides unmarried mothers child custody rights that are largely similar to those enjoyed by married mothers or fathers. In this blog, we explore some key points in relation to unmarried mothers’ custody rights.
As with all family law cases, it is always the best interests of the child that the courts give paramount consideration to. Therefore, unmarried mothers custody rights will also ultimately depend on the best interests of the child.
Do Unmarried Mothers Have Custody Rights?
Yes. The child has the right to spend equal and substantial time with each of his/her parents. This is regardless of whether his/her parents are married or not. De facto couples who have separated also have same rights to visit their child, just as divorced couples do.
Because the Family Law Act (1975) gives most importance to the child’s interests, it does not matter if the parents of the child are married or in a de facto relationship. This means that an unmarried mother, and father can seek parenting orders from the family court.
Unmarried mothers custody rights will be shared by the other parent as well. Ideally, the two parties will need to make parenting arrangements or parenting plans that outline visitation and custody schedules.
Parenting Plans
Parenting plans can be made by two parties either in writing or verbally. These plans need not be legally binding, unless the parties apply for consent orders. Consent orders formalise the existing parenting plans. They can opt for joint custody arrangements.
Family lawyers recommend parties to turn their plans into consent order. Consent orders provide certainty to the both parties. If they fail to comply with the terms of the consent orders, they are breaching court orders.
Parenting Orders
Family courts make parenting orders when the parties are unable to reach mutual agreements. Courts will consider unmarried mothers and unmarried father custody rights and make orders based on what would be in the best interest of the child in question.
Section 60CC of the Family Law Act (1975) lists out the primary and secondary considerations under the best interests of the child principle.
However, the parties may have to establish paternity in order to get legal custody and visitation rights for the children involved. The child’s birth certificate can be used to show that the child’s father and child’s mother are his/her biological parents.
Unmarried Parents Custody Rights: De Facto Couples
When couples are in a relationship on a genuine domestic basis, and are not legally married, they are said to be in a de facto relationship. For unmarried mothers custody rights, the topic of de facto entitlements becomes relevant.
While people often assume that de facto couples do not have the same rights as married couples, this is simply not the case. In Australian family law, parties who have had a de facto separation will also get similar parenting and property entitlements. They will also have similar obligations, for example, they may have to pay child support after separation.
It is, however, important to note that unmarried parties must prove that a de facto relationship did indeed exist between the two of them. There are various ways to prove this. It is prudent for parties to register their relationship online. For instance, in NSW, parties can register a de facto relationship on the NSW Registry of Births, Deaths and Marriages here.
There are some other criteria that courts may consider to determine whether or not a couple was in a de facto relationship. This includes:
- Financial dependency
- Degree of mutual commitment to shared life
- Whether their relationship was sexual in nature
- Public aspects of the relationship, etc
For separated de facto couples, the options to gain their parental rights and custody order are similar as listed above. They can either opt to make parenting plans and custody arrangements among themselves, or they can approach the family court for court order on parenting.
Unmarried fathers and unmarried mothers; custody rights will then depend upon the kinds of orders that the court makes.
Can Single Mothers Receive Any Entitlements?
Single mothers can receive certain entitlements and financial support payments that can help them raise the children. This includes support payments from the child’s biological father, and spousal maintenance payments as well. If the mother has physical custody of the child and if she is looking after the child, the father cannot avoid paying child support to her as she is the custodial parent.
If the parents have shared custody, they can still come up with agreements for financial support and other entitlements.
Obtain Legal Advice for Legal Matters
Family law is complex. You may have many other questions similar to ‘do unmarried mothers have custody rights?’. To read some other blogs on family law topics, check our website page here.
At JB Solicitors, our lawyers have a wealth of experience in family law. We have award-winning meditators and arbitrators on our team. If you are an unmarried parent, we can help you draft legally binding parenting plans with your former partner.
Moreover, if you are unable to reach agreements, our family dispute practitioners can help you resolve ongoing disputes. We offer fixed-fee pricing for some of our services. For more information, do not hesitate to contact our friendly and experienced team of solicitors.
We can help with matters involving custody of child, custody arrangement, family violence, financial support, and legal parenthood. We can consider the child’s circumstances, child’s well-being, child’s wishes and who the child lives with and who child spends time with, and help unmarried couples with these legal matters.
Contact us for more information today.
