Skip to Content

Who Has Custody of a Child Born Out of Wedlock in New Jersey?

Divorced parents arguing about child custody against color wall

The rules of parentage for a child born during a marriage are relatively clear:  Both the mother and her spouse are presumed to be the parents of the child, with all attendant parental rights and responsibilities.  If the parties split up, New Jersey family law applies to determine custody.  The rules are a bit less clear if the parents are not married at the time the child is born.  Read on for a discussion of custody rights for unmarried parents in New Jersey, and contact a knowledgeable Englewood child custody lawyer with any questions you may have.

Fathers must establish paternity

In order to secure any custody rights, a party must be legally recognized as the child’s parent.  The birth mother is always presumed to be the mother of the child.  Unwed fathers, however, must establish paternity before they can seek custody rights.  There are several ways to establish paternity.  If the parties agree on paternity, the father can sign a voluntary acknowledgment of paternity, and the parties can execute a certificate of parentage at the hospital during the child’s birth or later at a county registrar.  If there is a dispute about paternity, the parties may need to go to court, which may involve taking a DNA test.  If the parties marry shortly after the birth of a child, it is wise to secure a court order establishing paternity to allay any doubt.

Once paternity is established, custody is handled the same as for married parents

If both parties are legally recognized as parents to the child, then custody disputes will be handled in essentially the same manner as if the parties were married and divorcing.  The parties can negotiate a parenting plan for custody, visitation, and child support.  If the parties are unable to agree, then either party can file a custody action in court.  The court will evaluate parental rights according to the “best interests of the child,” which concerns the child’s physical, mental, and emotional well-being.

New Jersey family courts start with the presumption that a child will benefit most from continued contact with both parents unless presented evidence to the contrary (such as if there is a history of abuse).  New Jersey family law lists a series of factors the court will evaluate including the age and number of children in each home, the fitness of each parent, the extent and quality of time spent by each parent with the child before and after separation, any special needs of the child, and other considerations. 

Family courts do not discriminate based on gender, meaning that mothers are no longer presumed to be the primary parent to the detriment of unwed fathers.  The court will evaluate the best interests of the child from a neutral position and issue an order accordingly.

For dedicated and effective legal help with a New Jersey custodial dispute, adoption, or other parental rights issue, contact the Englewood parental rights lawyers Herbert & Weiss at (201) 500-2151.

Share To: