How Does an Unmarried Father Relinquish Custody of an Unborn Child?

Full Question:

My unmarried daughter is pregnant and has secured the oral agreement of the biological father to give up custody. In return, she will assume full support of the child and not seek child support from the biological father. She will not be seeking any public assistance. How do they commemorate this agreement in writing (eg. is their a Waiver of Custody rights form in USLEGALFORMS)?
07/03/2009   |   Category: Paternity   |   State: Pennsylvania   |   #17320


Child support is typically determined in a paternity or divorce action. An affidavit between the parents to waive child support is generally not enforceable. If a paternity or divorce action isn't used to establish support, the duty of support is typically terminated in a termination of parental rights. A petition to relinquish parental rights may be made voluntarily. Please see the statute below.

Some courts will not allow the parties to waive child support requirement even if the parties are in agreement. Generally, the right to waive the support is construed to belong to the child and not to the parent with whom the child lives. Since the child is not competent to make this kind of decision, the court is very reluctant to allow child support to be waived. It will be a subjective matter of determination for the court based on all the facts and circumstances in each case. The overriding determining factor is the child’s best interest and the child support ordered in the decree will ultimately be a matter for the court to specify.

A parent may also have rights terminated, either by voluntary relinquishment or judicial termination. A judicial termination requires proof that the parent is unfit and/or poses a threat of harm to the child. A termination of parental rights voids any rights and obligations toward the child. The parent will no longer have rights to custody or visitation and will no longer owe a duty of support. However, it is possible that back support owed may still be collected.

Termination of parental rights is a court order that severs the rights, powers, privileges, immunities, duties and obligations between a parent and child. A termination of parental rights may be voluntary or involuntary. Even if the statutory grounds for termination of parental rights are established, the court need not terminate parental rights if such action is not in the child’s best interests. Such a decision may be made based upon, among other factors, abandonment by a parent, child abuse, unfitness of a parent, and other injuries to a child. The parent whose rights are sought to be terminated has certain due process rights, such as proper notice and a hearing. After the termination of parental rights, the child is placed with someone other than the parent whose rights are terminated, such as the other parent or a foster home. A parent whose rights are terminated is generally relieved of the obligation to pay child support, however, courts are reluctant to allow parents to avoid their child support obligations by waiving all parental rights to their children. Some courts disallow a parent to terminate parental rights in order to avoid child support payments.

Unmarried fathers have rights and duties similar to those of married fathers. Couples who are living together but are not married should take steps to ensure that both are recognized as the legal parents. Both parents can be listed on the birth certificate. A parent who is not listed may be able to be added after the birth of a child if the parent contacts the state Bureau of Vital Statistics in which the birth took place. The father will be shown on the birth certificate if he acknowledges paternity when or close in time to the birth, or the court orders the birth certificate to be changed to reflect the father’s name. A father can acknowledge paternity by signing a written admission or voluntary acknowledgment of paternity or paternity may be established by filing a civil lawsuit. Generally, paternity must be established for the father to seek custody and/or visitation rights with his child. Paternity refers to the legal acknowledgment of the parental relationship between a father and his child.

Parents are legally obligated to provide their children with all the necessities of life. The failure of parents to marry does not affect their responsibility to support their children. If parents are unmarried and cannot agree upon how much each should contribute toward the support of their children, the courts may decide. A court can order one parent to make specified payments to the other for child support. State laws provide that biological parents make all the decisions involving their children, including education, health care, and religious upbringing. Parents are not required to secure the legal right to make these decisions if they are married and are listed on the child's birth certificate. However, if there is disagreement about who has the right to make these decisions courts can decide.

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