Protecting Fathers Rights In Cohabiting Relationships

By Matt Allen

Editor, DadsDivorce.com

There are now more children who live with unwed, cohabiting parents than with divorced parents and that affects fathers rights to child custody, according to a recent report.

The National Marriage Project and the Institute for American Values reports there are 12 times as many cohabiting couples with children as there were in 1970.

By the time children reach 12 years old, 42 percent of them have lived with cohabitating parents while only 24 percent have lived with parents who have divorced, according to the National Survey of Family Growth.

If you are in a cohabiting relationship, you need to be aware of your rights to your children and if your partner has any rights to your assets should the relationship end.

Studies have shown non-marital unions are much less stable so it’s important to protect your interests before a break up.

Most importantly, if you have a child then you must ensure you have established paternity. There is no presumption to who is the father when a child is born out of wedlock.

Thus, you do not have any rights to your child if you do not establish that you are legally the father.

Here are three ways to establish paternity, according to Cordell & Cordell attorney Michelle Hughes:

1. Get on the birth certificate: Once your child is born, the easiest way to establish paternity is by getting your name on the birth certificate. Voluntary Acknowledgment of Paternity (VAP) forms are also available for fathers to sign at the hospital at the time of the child’s birth.
2. Get an order through an administrative agency. Administrative agencies (such as Child Support Enforcement) can be helpful during the initial stages of your paternity action by assisting you with filling out forms and helping you obtain a DNA test to establish that you are the father of the child.
3. Get a court order. You must file a Petition for Paternity and Child Custody with your local Circuit Court or Family Court. The court will then order a paternity test or look to see if the father is listed on the birth certificate to determine whether paternity has been established.

If you are cohabiting without children then you do not have as much to worry about. In most states, people who are living together but are not married do not have a claim to the other’s assets.

A judge does not have authority to award your girlfriend your assets if you break up because you do not have a legal relationship with her (and vice versa).

Many people worry about cohabiting relationships turning into a common law marriage and thus setting legal rights.

But just living together or having a child together is not enough to enter you into a common law marriage, according to Cordell & Cordell attorney Jill Duffy. Most states require an agreement or intent to be married.

These informal marriages are only recognized by nine states and are generally defined as “marriages by habit and repute.”

The nine states that recognize common law marriage are: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah; Washington D.C. also recognizes new common law marriages.

A common law marriage does not have to include a formal contract between two people; it can be as simple as calling each other husband and wife and telling others that you are married.

Most states also have a specific period of time that is required for the couple to hold themselves out as married before the common law marriage will be recognized by the state.

If you live in a state that does not recognize common law marriage, you cannot form a common law marriage no matter how long you live with your partner and what actions you take together.

 

Data from the National Marriage Project and the Institute for American Values study cites the work of 18 family issues researchers as well as the Census Bureau and the Centers for Disease Control and Prevention. Read the full report, “Why Marriage Matters.”