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Do Unmarried Parents Need to File for Custody?

When married couples who have children get divorced, they need to file for custody of their kids so that the court can properly decide:

  • Where the child will live
  • The bounds of parenting time
  • Who will have decision-making authorities
  • And other items 

But what if the couple is not married and they are separating? Does that mean that they don’t have to file for custody? Who determines the rights of the parties with regards to their children? 

When couples have children outside the bounds of marriage and are separating, the court will still need to determine their parental rights and responsibilities. In general, unmarried parents still need to file for custody, but in these unique situations, the process is instead referred to as the allocation of parental responsibilities (APR). 

Allocation of Parental Responsibilities 

The allocation of parental responsibilities is a legal process where the family court determines who among the parties obtains physical and legal custodial rights for a child. It is similar to a petition for dissolution, except that the parties do not discuss marital finances and resources since they are not married. 

The three main areas of concern in an APR case include: 

  • Decision-making
  • Parenting time
  • Child support 

The court can grant all of these responsibilities to one parent should there be a valid and justifiable reason that the other should be absent in the parenting plan. However, it is always encouraged that both parents, although separated, retain a role in raising the child and making decisions for their future. 

Common-Law Marriage 

Some couples who did not have an official marriage ceremony can still be considered married under the principle of sui iuris marriage or common-law marriage. This non-ceremonial marriage by habit and repute is present when couples have lived together for a long period of time and have held themselves out as married. Should they have children and seek to separate, they should file a petition for common law marriage with children. 

Why Should You File an Allocation of Parental Responsibilities?

It’s important to file an allocation of parental responsibilities in order for the family court to obtain jurisdiction over the child. This allows the court to lay down rules, rights, and responsibilities to each of the parties after they have separated. 

Otherwise, without court jurisdiction, one parent can do whatever they want with the child and the other will have no legal relief. Filing with the family court ensures that the child’s best interests are observed as the couple moves forward with their lives as individuals. 

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Danielle
Davis

Assistant Managing Partner - Domestic Relations

Denver – Cherry Creek

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