Fatherhood Outside of Marriage: What Parental Rights Do Unmarried Father’s Really Have?

Picture of Quiyue Zhao, Ph.D.

Quiyue Zhao, Ph.D.

What Are Unmarried Father’s Parental Rights?

Establishing paternity is often essential. Once confirmed, fathers can seek custody, visitation, and decision-making rights. Legal avenues include being on the birth certificate, signing a parental agreement, or obtaining a court order.

Introduction: What Parental Rights Do Unmarried Father’s Really Have?

What Parental Rights Do Unmarried Father’s Really Have?

Where both biological parents possess parental rights and responsibilities, decisions regarding the child’s residence, upbringing, health, welfare, and development can be jointly made by them.

Fatherhood Outside of Marriage - What Parental Rights Do Unmarried Father's Really Have?
Fatherhood Outside of Marriage: What Parental Rights Do Unmarried Father’s Really Have?

There exist legal avenues for a father to acquire parental rights even if both parents are unmarried or not listed on the birth certificate. The nature of these unmarried father’s rights will be discussed below.

By default, mothers automatically receive parental rights upon childbirth. These can only be rescinded by a judicial decision or through adoption.

Similarly, a father who is married at the time of the child’s birth is automatically granted parental responsibility.

Unmarried fathers assume that being the biological parent automatically confers parental responsibility upon the child’s birth.

However, an unmarried father obtains parental rights only under certain conditions; without this, his rights regarding the child are limited.

How Can Unmarried Father’s Rights Be Obtained?

An unmarried father’s rights can be obtained through various means, such as being listed on the birth certificate, forging a parental responsibility agreement with the child’s mother, or securing a parental responsibility order from the court

How Do Unmarried Father’s Gain Parental Rights?

A biological father gains parental rights if he:

  • Enters and registers an agreement with the child’s mother, unless a court has annulled her rights and responsibilities.
  • Was wedded to, or in a civil partnership with, the child’s mother at the time of conception;
  • Weds or enters a civil partnership with the child’s mother post-conception.
  • Is recorded on the child’s birth certificate within 21 days post-birth.
  • Is awarded parental rights by a judicial body.

It is imperative to note that in the UK, after May 2006, parental rights are automatically conferred upon unmarried fathers, provided they register on the child’s birth certificate within the stipulated 21 days.

The Family Law (Scotland) Act 2006 reformed parental rights for unmarried fathers.

Before this legislation, even if listed on the birth certificate, unmarried fathers did not automatically receive parental rights and responsibilities.

However, post-legislation, if an unmarried father is named on the birth certificate, he inherently gains parental rights and responsibilities.

What Rights Do Fathers Have If Not On The Birth Certificate?

Unmarried fathers not listed on the child’s birth certificate do not possess parental rights unless awarded by a court or established via a written agreement with the child’s mother. If such fathers seek these rights and responsibilities, obtaining a court order is necessary.

To secure parental rights and responsibilities without being on the birth certificate, an application for a court order is required. This action does not mandate the mother’s consent.

How Can An Unmarried Fathers Get Parental Responsibility?

Unmarried father’s rights to secure parental responsibility requires the following to be undertaken:

  1. Marry the child’s mother;
  2. Execute a parental responsibility agreement in conjunction with the mother; or
  3. Procure a parental responsibility order from the court.

Parental responsibility is defined under section 3 of the Children Act 1989 as being all the “rights, duties, powers, responsibilities and authority which by law, a parent of a child has in relation to the child and his property”.

The unmarried father’s rights extends the ability of the father to petition the court for parental responsibility. The court will assess:

  1. Your demonstrated commitment as a father;
  2. The bond established between you and your child;
  3. The motivations behind your application.

The court will consider the child’s best interests, which will guide their decision on the conferral of parental responsibility.

Often, fathers may opt for a parental responsibility agreement with the mother, avoiding judicial proceedings. Such an agreement is particularly apt if:

  1. You are an unmarried father not listed on the child’s birth certificate; or
  2. You are entering marriage and wish to assume parental responsibility for your soon-to-be spouse’s child (termed a step-parent parental responsibility agreement).

How Long Does Parental Responsibility Last For An Unmarried Father?

Parental responsibility persists until the child reaches 18 years of age following which the unmarried father’s rights may be terminated.

However, if the child marries between the ages of 16 and 18, parental responsibility ceases upon the child’s marriage.

The unmarried father’s rights and responsibilities can be terminated through a court order, adoption, or placement order.

This termination provision extends to any individual who gains parental responsibility via a Parental Responsibility Agreement or order.

Additionally, an adoption order can terminate parental responsibility prior to the child reaching 18.

Can A Mother Prevent An Unmarried Father From Seeing His Child?

Generally, no parent can deny the other parent access to their child unless specific circumstances apply.

The primary exception is when the child’s welfare is potentially endangered. If there is a credible risk of harm to the child, a mother can restrict a father’s access.

To limit an unmarried father’s access, a mother must demonstrate to the court that there is a genuine risk to the child’s well-being.

Based on the evidence, the mother might be permitted to determine:

  • The duration of the father’s visitation
  • The specific times of visitation
  • The nature of the visit, whether it’s direct or supervised, and
  • Whether visitation occurs at all.

Potential concerns justifying restricted access might include issues related to drugs, alcohol, criminal activity, or abuse by the father.

Can An Unmarried Father Have Their Child Live With Them?

An unmarried father has the right to petition the court for a ‘live with’ order, requesting the child primarily reside with him.

In such matters, the court prioritises the child’s well-being above all. If the parents cannot reach a consensus, the court will issue an order to provide clarity on future arrangements when establishing an unmarried father’s rights.

It’s important to recognise that the court can also issue an Order even if it hasn’t been explicitly requested for conferring unmarried father’s rights, such as right to live with the child, on the father.

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Does An Unmarried Mother Have More Rights Than An Unmarried Father?

The rights of unmarried mothers and fathers vary depending on the jurisdiction or country.

Unmarried mother’s and fathers Rights in the United States:

  • Unmarried Mother’s Rights in the US: By default, an unmarried mother is presumed to have full physical and legal custody of her child unless a court order states otherwise.
  • Unmarried Father’s Rights in the US: To secure legal rights to his child, an unmarried father often must establish paternity. Once paternity is established, the father can seek custody or visitation rights. However, without establishing paternity, an unmarried father typically does not have the same inherent rights as the mother.

Unmarried mother’s and fathers Rights in the United Kingdom:

  • Unmarried Mother’s Rights in the UK: Similar to the U.S., an unmarried mother in the UK automatically has parental responsibility for her child from birth.
  • Unmarried Father’s Rights in the UK: In England and Wales, an unmarried father can obtain parental responsibility if he’s named on the birth certificate (for births registered after 1st December 2003), through a parental responsibility agreement with the mother, or by obtaining a court order. In Scotland, an unmarried father has parental responsibility if he’s named on the birth certificate (for births registered after 4th May 2006).

In both jurisdictions, it is important to note that while the processes differ, the underlying principle is the best interests of the child.

Both parents, including unmarried fathers, have the potential to seek and obtain custody or visitation rights if they can demonstrate that it is in the child’s best interest.

Picture of Quiyue Zhao, Ph.D.

Quiyue Zhao, Ph.D.

Quiyue possesses an undergraduate degree in Law with International Relations, an LLM in International Law and Doctorate in Human Rights and Legal Technology. Her PhD thesis was based on the impact of crypto-assets regulation on financial inclusion for women in emerging markets. Quiyue is a senior research fellow in London and has an interest in Constitutional Law, Economic Crime, European Union Law and Family and Child Law.

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