The Legal Considerations Of Having Children Outside of Marriage

Many younger couples ask me: why get married? One reason couples avoid marriage is because they wish to avoid formal structures imposed by law. But when children are born, the law suddenly has a lot more to say about how you live your life and how you raise your children.

If a couple is considering having a child, especially if by natural means, they are well-served to understand the legal landscape of parenting outside of legal marriage.

There are two reasons I came to write this article. One reason is to equip prospective parents with a basic understanding of the legal rights and responsibilities they are signing up for. The second reason is to give them a reality check about what can happen if the loving relationship between unmarried parents deteriorates, along with guidance to help avoid disaster in the form of custody issues.

What Can Happen After Having a Child Before Marriage?

Often, parents who dispense with formal structures like marriage also tend to avoid getting the law involved when their relationship breaks down. My experience is that they don’t want the clarity of formal legal documents, or the creation of enforceable child support, because they don’t want to be pinned down, or they don’t want to risk upsetting the other parent. I can well understand these sentiments, but avoiding legal clarity can have unintended consequences and can subject children to unnecessary deprivation or uncertainty.

As I will discuss, if parents reject marriage to each other, they should at least consider creating a parenting plan laying out their respective legal rights and responsibilities, before relationship breakdown if possible. The clarity of a formal parenting plan can help avoid unnecessary disputes, confusion, and unintended harm to their child. 

What follows is meant to provide background context to help unmarried parents understand the importance of, and to help them develop, a parenting plan. 

Disclaimer: This is a brief overview of the legal rights and responsibilities of unmarried parents in Colorado. Nothing in this article constitutes legal advice, nor creates an attorney-client relationship between the author and any individual. Every case is unique, and you should direct specific legal questions in your case to a licensed attorney. While this article relates to Colorado law specifically, and each state has its own set of laws governing parents, most state laws have considerable overlap, and some aspects of family law are governed by overarching federal law. 

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What are the default rights and responsibilities of unmarried parents?

Unless a parent (or both parents together) file for a court order allocating “parental responsibilities,” neither parent has a superior right to a child. Any biological or legal parent may make unilateral decisions for the child, or travel or relocate with the child, without necessarily discussing the matter with the other parent. Neither parent has any right, enforceable against the other parent, to have time with the child. 

Of course, all parents have baseline responsibilities to refrain from conduct that might rise to the level of abuse or neglect, as defined by law and as policed by the state or county department of social services. Abuse or neglect is grounds for termination of parental rights.

Do mothers have default parenting rights over fathers?

Family law is gender neutral in Colorado (and clearly so in almost all states). However, if one parent is deemed to be the “primary caregiver” of a very young child, the court will normally ensure the child is only away from that parent for short periods of time

What is “custody?”

Custody is an informal term referencing the bundle of legal rights and responsibilities that can be allocated between parents in the event they aren’t functioning as a team. The primary components of what most people think about as “custody” are parenting time (when and under what conditions a parent has a legal right and obligation to care for a child, sometimes identified by courts and statutes as “physical custody”), and how and by whom decision-making is carried out concerning major issues related to a minor child. 

As discussed above, neither parent has custodial rights by default. If parents can’t negotiate a parenting plan together, a court will determine custody issues, if requested.   

What is a “parenting plan?”

A parenting plan is a document addressing all the legal components of custody. If signed and court-approved, or if entered independently by a court, it is legally enforceable. 

Do unmarried parents need a parenting plan? What happens if there isn't one?

A formal parenting plan is not required just because a child is born outside of marriage. However, without such a formal parenting plan, either parent can unilaterally make decisions for the child or move around with the child (even out of state), and neither parent has any enforceable right to monetary support from the other parent to help with child-related expenses.

If we agree on present or future custody issues, do we have to go to court to create a formal parenting plan?

A parenting plan only becomes enforceable through a formal court process. If both parents are in agreement regarding present or future parental responsibilities for the child, they can submit a parenting plan to the court for approval as a court order. A judge may ask questions about the proposed parenting plan prior to approving it. Occasionally the court may determine that one or more terms in the proposed parenting plan need to be reconsidered or revised. In that case parents are given additional time in which to address any inconsistencies in the plan and/or revise the provisions questioned by the court. 

I recommend that unmarried parents create a parenting plan, even if they don’t submit it right away for court approval. It can always be submitted later, even if it needs to be updated or amended. While new parents may not be thinking about it, there are many reasons parents who are not married may start to diverge in their parenting interests over time: e.g., new relationships, one or both parents wanting to move, or growing disagreement over significant parenting issues. A parenting plan, especially when made a court order, helps ensure that parents have something to govern the parenting relationship in the event they stop getting along, and will prevent either parent from unilaterally making choices with regard to parenting that affect the other parent without their consent.

What is legal decision-making? What kinds of decisions are we talking about?

In the event parents aren’t functioning as a team, the authority to make “major” decisions for a child can be allocated between the parents or jointly. While major decision areas always include medical care, religious training, education, and activities requiring a parent’s signature, the designation can be expanded to include anything from cell phone access to hair color. By contrast, non-designated “minor” decisions are made by the parent who happens to be caring for a child at the time.

It is often ideal for parents to be joint decision-makers, so that each feels like he or she has a voice in important matters related to a child. However, parents can’t be joint decision makers if they can’t reliably come together and agree on a decision, because that would not be in the best interest of the child,

How does a parenting schedule work?

In the event parents aren’t functioning as a team, each can be allocated a regular, repeating schedule of time when a parent is expected to care for a child. Parenting time is parceled out between parents by agreement or as ordered by a court. 

A parenting schedule usually has no qualitative restrictions, meaning a parent has discretion on where and how he or she parents a child, or if he or she delegates the responsibility to a third party like a babysitter or family member. However, when appropriate, parenting time can be limited in some way; for example, monitored sobriety is sometimes a prerequisite to exercise parenting time, or parenting time might be supervised by a third party like a therapist in some circumstances.

Parenting time can be optional time (as opposed to an obligation), if identified in this way. 

Parenting schedules can be quantitatively equal or unequal. Custodyxchange.com/examples/schedules provides detailed comparisons and analysis of various types of schedules.

If we don't agree on custody issues, how will the court create a parenting plan?

If parents don’t agree on a parenting plan, but at least one of them desires a court order, the court must hold a trial to rule on a parenting plan. The court reviews disputed issues between parents according to the “best interests of the child” standard. As part of this, the court considers a series of factors set by statute to provide a framework for determining parental responsibility orders. The court will consider such things as the history of the relationship between the parent and the child and the ability of the parent to prioritize the needs of the child. 

In many disputed cases, an expert will be appointed by the court to assist in evaluating custody. A Child Family Investigator (CFI) is an expert who is appointed to make a recommendation to the court generally on narrow issues that may require specific investigation and are beyond the scope of the court’s standard analysis. A CFI will talk to both parents, observe each with the child, and offer opinions regarding whatever parenting issues he or she has been tasked to investigate.

What is child support? Is it mandatory? 

There is no automatic requirement for parents to share in child-related financial expenditures, or for one parent to support the other to help pay for financial expenses related to the child. 

However, child support will be addressed by a court any time a legal action is filed related to parenting issues. Child support is the right of the child to be adequately supported by both parents, according to the financial circumstances of the parents. Courts will run a child support worksheet using the statutory formula, and will only deviate from the formula if doing so would be in the “best interest” of the child. 

How is child support calculated? 

Child support is calculated based on gross incomes of each parent (or a parent’s “potential income” if that parent is not working to full capacity) considered alongside the amount of overnights each parent will be caring for a child annually (a proxy for how much money a parent will spend caring for a child). 

The formula is adjusted by out-of-pocket expenses a parent may be making toward health insurance or other known costs. If financial or other circumstances result in one parent shifting money to the other in order that the child be financially supported as closely as possible to circumstances if the parents separation did not occur, an enforceable child support order is entered by the court. 

Child support also includes an ongoing obligation to share in “extraordinary” expenses that come up from time to time, such as uncovered medical costs, education-related expenses (up through high school only), necessary travel for parenting time, and extracurricular activities. The default manner in which these costs are shared by the parents is in proportion to their combined gross incomes. 

How long does child support last? How and when is it modified? 

Child support terminates automatically at age nineteen, unless the parties agree otherwise, the child is mentally or physically disabled, the child is still in high school or an equivalent program (up to age twenty-one), the child marries, the child enters into active military duty, or if the child has been legally emancipated earlier. Up until termination, child support is modifiable at any time there is an ongoing and substantial change of circumstances (with the threshold being a change that give rise to a 10% change in the calculated support amount).

How does child support in Colorado compare to other states?

According to this study, Colorado is in the bottom 20% of all states (ranking #41 out of 50) in terms of child support levels, meaning many states use a calculation method that, assuming similar financial circumstances, parents owe a greater duty of financial support in favor of the child.

Do Mothers have to work right away?

For the first 2.5 years after the birth of a child, either parent who is primarily caring for a child is not expected to work, at least for purposes of calculating child support for that child.

Can a parent voluntarily relinquish parental responsibility?

A parent cannot voluntarily relinquish parental responsibility except via adoption proceedings, because the child has a right to be financially supported by both parents, and to potentially inherit from each parent. 

However, a parent may be involuntarily stripped of parenting rights if deemed by the state to have abused or neglected his or her child, and parenting time and decision-making rights can be ceded entirely by one parent to the other parent, or possibly to a non-parent.

What state has jurisdiction to issue orders anyway? 

Jurisdiction is a patchwork of state and federal law, and is exceedingly complex. Some of the hardest family law cases involve parents who are constantly moving about, or who have recently relocated, such as to Denver, CO. Generally speaking, for a court to have non-emergency jurisdiction to issue orders related to a child, the child must have resided in the state for 180 days, or there must be strong arguments as to the appropriateness of jurisdiction. 

Sometimes a parent leaves a state with a child, and the other parent is faced with filing a petition in the home state and the difficult prospect of seeking help from state or federal authorities to force the return of the other parent to litigate the case.

What is the best way for parents who are getting along to create a parenting plan?

A good way for unmarried parents to develop a parenting plan is with the support and guidance of a neutral facilitator who has an understanding of family law. Just like a prenuptial agreement is challenging to negotiate leading up to a wedding, a parenting plan can also involve difficult conversations. 

Mediation can provide a supportive environment to navigate the conversation of allocating present or future legal rights and responsibilities, while the relationship between the parents is good. Creating a parenting plan, which is a part of every Conscious Family Contract (whether or not the parents are getting married) can shine a light on the gravity of what it means to be a parent, and can forge a dedication to working well as a parenting team, whether or not the romantic relationship between parents continues to thrive. 

John Hoelle is Co-Founder of Conscious Family™ Law & Mediation, offering collaborative divorce mediation, or legal representation with strength and integrity, in metro Denver/Boulder, Colorado. Conscious Family™ attorney/mediator, Amy Stengel, assisted in preparing this article.