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

A common question many women ask is, “Should I get married before having a child?”

The popular answer is yes, as marriage is often seen as ideal before conceiving and raising a child. However, life sometimes throws us curveballs, and things don’t always go as planned. As women, when we think of marriage, we often envision stability, family, a house with a white picket fence, a two-car garage—we want the life we were promised as children: go to college, get a good career, live in a beautiful home with your husband, have kids, go to Disneyland once a year, raise good humans, send them off to college, travel the world with your partner, grow old together, and pass on.

In recent years, single motherhood in the U.S. has become more common, with the proportion of single-mother households remaining high. In 2023, around 7.3 million single mothers were recorded, accounting for over 80% of all single-parent households. Married or not, both you and your partner share equal custody of a child once the child is born and the father signs the birth certificate.

Signing a birth certificate generally establishes a man as the legal father of the child, granting him certain paternal rights. However, there are times when a single mother may wish to relocate with her child to start fresh in a more affordable town or city. This has prompted other women to question whether it is legal for a mother to take the child without the father’s consent, especially if he is not contributing financially to the child’s wellbeing.

When a man signs a birth certificate, he is often granted the presumption of paternity, which may give him parental rights similar to those of the mother. If there is no formal custody agreement in place, the mother may have more latitude in making decisions, but this varies significantly by jurisdiction. In many cases, if the father wishes to be involved, he may need to establish legal custody or visitation rights through the court system, which could place limitations on the mother’s ability to relocate without his consent.

In situations where a custody order does exist, the relocating parent would often need the other parent’s consent or a court order approving the relocation, especially if it could impact the other parent’s visitation rights. Courts generally consider whether the relocation is in the child’s best interest and may not approve a move if it negatively affects the child’s relationship with the other parent. This is not legal advice, so it’s best to seek legal guidance to understand the implications of paternity, custody, and relocation fully.

While it’s not always feasible to get married before having children, it’s certainly something to heavily consider, as it will always be in your best interest as a mother. We often hear professionals or even podcasters discuss the benefits men receive in a marriage—a wife to cook, clean, emotionally support them, and raise the kids, all of which improve their quality of life. On the other hand, women are sometimes deemed miserable, less likely to remarry in the event of a divorce, and so on.

But marriage can bring a variety of benefits to wives, ranging from financial stability and health advantages to personal growth opportunities. The problem is many women are marrying down when they should, in fact, be marrying up. If the man you choose to marry cannot improve your quality of life, then he may not be ready for a wife.

There are legal benefits for wives, including the reduction of tax burdens, the inheritance of benefits, and the ability to make medical and financial decisions for each other if one partner becomes incapacitated. Wives also have access to health insurance—many spouses gain access to better health insurance through their partner’s employer-sponsored plans, which can reduce medical costs and improve access to healthcare.

There is also the social and emotional support that women receive when they are married. Although it is unethical, there are cases where married women receive better medical treatment when they go to the hospital compared to single mothers. While some may assist single moms out of pity, many medical practitioners may be more willing to aid married women out of a sense of social obligation, viewing these women as stable and part of a community.

The nuclear family was created for the benefit of wealth and power. Many married couples stay together because it benefits their generational wealth. Others get married because it is advantageous to the patriarchy, giving men access to a wife they otherwise do not deserve. Are we all supposed to aspire to marriage despite our social and economic status? No.

Even as children watching cartoons, there is almost always one financially well-off character—Aladdin and Princess Jasmine, Cinderella and the Prince, Snow White and Prince Charming, Princess Aurora and Prince Phillip. The list goes on, and even in novels such as The Snows of Khione, where a young Mary—merely twelve from a destitute family in Sattle—is sent off to marry Prince Amer. In these stories, the women are usually poor, and the men are usually rich, yet somehow society has led us to believe that even men without resources should be allowed to wed and reproduce.

If you wish to lower your standards and marry for love over stability, prepare yourself for the hardships that may follow. Take, for example, the recent family going viral on TikTok, The Resilient Jenkins, who, after trying for two years, finally gained attention after showcasing their living conditions. Stephanie, the mom, shared with viewers on TikTok that her family of six—four children, herself, her partner (who she is not legally married to), and one child on the way—live in a one-bedroom apartment.

The children sleep on the living room/dining room floor closest to the kitchen, while she and her partner have a king-sized mattress, a flat screen TV, and a PlayStation 5 in their room. Once the couple went viral, think pieces poured out. While some criticized the family, others supported them, with many even purchasing items from their Amazon wishlist, from bedding to car detailing supplies, to support her partner’s business venture, as he does not want to work.

The father actively avoids employment, fearing his wages will be garnished by his first child’s mother for back child support. Since they are not legally married, her income cannot be combined with his, meaning she is not legally responsible for his child support. However, he still shares custody of their children and can claim them on his taxes.

Whether your goal is to marry or not, you should consider a few things: How will I benefit from marriage? Is this person going to elevate my life or seek to destroy it? Will this person be a good father to our children and a supportive husband to me?

by Harley Miller & Jillian Bozzelli, LMFT