Parenting Issues for Unmarried Couples FAQ

My partner and I are not married but would like to have children.  What steps should we take to make sure we are both legal parents of the child?

Heterosexual couples who have children together need to take steps to ensure that both are recognized as the legal parents. First, both parents should be listed on the birth certificate.

Think about making a parenting agreement: a formal, personal, written commitment, stating your desire to parent together. Include language that clearly states your intentions to continue co-parenting even if you end your relationship. It is also wise to cover financial issues, as well as each parent's intentions for providing the other parent with generous visitation, access to school and social events, and so forth.

If I don't marry my partner, will our child be eligible for government benefits like social insurance survivor payments?

Any biological or legal child is eligible for government benefits, including Social Insurance survivorship, government pension benefits and the like. The key is to ensure birth certificate and paternity issues are resolved shortly after the child's birth. (See the previous question.) If you fail to establish yourself as a legal parent  by failing to put your name on the birth certificate and your child seeks government benefits after your death, the agency may deny his or her request because there is no proof that you were the parent.  At the very least, your child will have to contend with proving parentage.

My partner and I have different last names.  What name does our child take?

In most provinces and states, you can use any first, middle or last name you choose.  You may hyphenate both of your last names, give the child one of your last names as a middle name or decide later and amend the birth certificate to reflect your new choice.

My partner and I have a young child. If I give up my job to become a full-time parent, can I be compensated for my loss of income?

This is a personal -- not a legal -- question. If you and your partner decide that compensation is fair, there are many ways to arrange it.  You could draft an agreement which states that if you break up while you are still providing child care, your partner will pay an agreed-upon amount to help you make the transition to a new situation. You might agree in writing that your partner  pay you a salary during the time you stay at home, including social insurance and other benefits.

Your partner does not have a legal obligation to support you. The only legal requirement is each parent's obligation to support the child.  If you do enter into a formal support arrangement with your partner and then  break up, a court might not enforce it. Some courts feel it is against public policy to force someone to provide for another without a legal basis, while others might view your agreement as a binding contract whose terms must be honored.

My partner and I are not married and file separate tax returns.  Can we both claim our child as a dependent?

Taxes affect unmarried people with children the same as divorced partners.  Only one person can claim the child as a dependent. This does not  mean that only one of you is entitled to claim your child, just that only one person can legally take the exemption. How do you decide who gets the tax break? The parent whose income is in a higher tax bracket will get a bigger tax savings. You can agree in advance,  in writing, on how to split the return. If you can afford it, you may even consider putting it in a special account in your child's name.

I live with my partner and her child from another relationship.  Can I authorize medical care or sign school permission slips for the child?

With regard to medical care, if the biological parent shares custody with your partner, he and your partner have the only legal authority to make medical authorizations.  If the other parent is not involved, your partner may list you as an emergency contact on the school records, for example, but your partner has first choice on medical treatment decisions.

You probably don't have any standing for signing school permission slips. Schools are legally responsible for the children in their care and are only permitted to accept signatures from legal guardians.  A legal guardian could be a foster parent or anyone who has legal custody of a child.  As the partner of a legal parent, you probably don't qualify. You might be able to pick the child up after school if your partner places your name on a list which gives the school permission to let the child leave with you.   It would be best to ask your partner to contact the school to find out what she can do to maximize your rights with regard to school authorizations.

Can I adopt my partner's child?

If you and your partner are married, the adoption will probably be approved.  Some provinces and states frown upon second-parent adoptions by unmarried couples.  If you wish to adopt without marrying, you should consult with a family lawyer.

Of course, you cannot adopt your partner's child unless the other legal parents agrees or if the other legal parent has failed to establish a relationship with the child or has abandoned the child.  If the non-custodial parent is the father, a social service agency will determine whether he has abandoned the child or whether his consent is needed before a second-parent adoption can take place. A father who has signed a paternity statement, has provided support (if he could) and has maintained a relationship with his child is not in danger of the child being adopted by someone else without his consent.

If the non-custodial parent is the mother, a social service agency will have to obtain her consent or recommend that her parental rights be terminated.  Unmarried mothers without custody must pay support if they can and visit the child or risk losing the child to a second-parent adoption.   Once you formally adopt your partner's child, you have all the legal rights and responsibilities of a biological parent, including the duty to raise and support the child, and the rights to custody and visitation should you and your partner ever separate.

My partner and I have children and are splitting up.  How will this affect our parenting rights and responsibilities?

If you can't reach an early compromise on the issues of custody (where the child lives), visitation (how often and under what circumstances the non-custodial parent spends time with the child) and child support (whether the non-custodial parent contributes anything to the costs of raising the child), you will have to resolve your troubles through mediation or court. Your legal rights and responsibilities hinge on whether one or both of you are legal parents and the laws of  the province or state where you live.

If you are both legal parents of the child (you are both biological parents, you have jointly adopted your child or the non-biological parent has obtained a legally valid adoption), you both have an equal right to custody of your child.  Neither parent has the right to deprive the other of physical custody or visitation unless a judge makes such an order. If a court does grant one parent physical custody, the other parent is usually entitled to visitation and is next in line to exercise physical custody rights if the custodial parent becomes unable to care for the child.

You can lose you rights as a full legal parent of a child if you fail to exercise parental responsibilities. All legal parents have a duty to support their children, whether or not they have physical custody of them. If you are not the parent with custody, you must stay involved with your child by visiting and providing support to the best of your ability.

If you are not a legal parent of the child (you partnered with someone who has a child from a prior relationship) and you have not legally adopted the child, you may not have any legal rights to parent or even visit the child after the break up. If you want to continue parenting or visiting the child and you and your partner cannot agree to any terms, you could petition a court for privileges but there are no guarantees that your request would be granted.  Ultimately, a court will rule in favor of the best interests of the child.  You would need to research your province's or state's laws in this area or consult with a good family lawyer.

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