Experienced divorce, collaborative divorce and family law attorney.
Single Parent Families with Children
JH came into my office a couple of weeks ago. He’s about 23 years old and has a two year old child with his girlfriend. They have never been married. He told us that he was planning on moving to Florida sometime in the near future and he and his girlfriend had entered into a written and notarized agreement where he would have the child half of the time. Part of their agreement was that neither the mother nor the father would pay child support to the other, though he admitted that he made about twice as much as the girlfriend. He wanted us to do what we needed to do to “make it legal.”
We told him that, first of all, a notarized agreement was of no use to him whatsoever. By Tennessee Code Annotated 36-2-303, “[A]bsent an order of custody to the contrary, custody of a child born out of wedlock is with the mother.” In other words, until the court gives its approval through a written order signed by the judge, the Mother has every right to do with the child what she wants and the Father has no rights at all. For example, the Mother has no obligation to allow the Father to see the child at all, allow him to make any decisions about the child’s upbringing, or, if she wanted to move to Montana, she could do so and he couldn’t stop her. However, despite the fact that he has no rights to even see the child, he will be held responsible for paying child support until the child is 18 or graduates high school, whichever is later.
The proportion of births to unmarried women has increased dramatically in recent decades, rising from five percent in 1960 to 32 percent in 1995. In 2012, it was approximately 41 percent. At some time in the future, it appears that more children will be born to unmarried couples than married couples. Unmarried mothers generally have lower incomes, lower education levels, and are more likely to be dependent on welfare assistance compared with married mothers. The cost to the taxpayer is significant and growing.
JH asked us, somewhat angrily, what business the courts had in making him pay child support, and we told him that the courts had no concern with his welfare, but with the welfare of the child. If the mother or the child received any kind of state assistance, the state has an interest. If the child goes to school, the state has an interest. However, we told JH that we had no interest in debating public policy; our responsibility, if we were to represent him, would be to protect his interests to the maximum extent allowed by law.
We told JH that parents do not have the legal right to agree to their own child support. Are there couples that agree to their own parenting time and child support? Undoubtedly, but, again, the Father has no legal right to the child, plus, if there is no documentation that the Father paid child support over the years, he could be forced to pay it back to the beginning of the child’s life. It was, therefore, our absolute and only recommendation that he and the Mother enter into a Parenting Plan, which includes a Child Support Worksheet, and to have it approved by the court. These items need to be modified from time to time as the child gets older, income changes, people move, but it is the best way, and only legal way, to protect the child and both parents.
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