Unwed/Unmarried Custody Laws


Howard and Montgomery County Lawyers Help Unwed and Unmarried Parents Determine Custody Arrangements

Helping with practical and legal issues when unmarried parents separate in Bethesda, Columbia, Fulton and Rockville

Unmarried Custody

Married couple who are seeking divorce must process any custody issues through their divorce action. Unmarried couples who are going their separate ways can file a separate action for custody. There is no legal requirement that couples have to be married before a custody order can be granted. When biological parents are not married, the determination of custody is made mostly in the same manner as it is for married couples.

At McCabe Russell, PA, our Montgomery and Howard County custody lawyers understand the legal and practical issues involved for unwed couples, unmarried same-sex/LGBTQ couples and others who may wish to have legal or physical custody of their child. We negotiate agreements and bring court actions to assert your legal custody and visitation rights. From our offices in Fulton, Columbia, Bethesda and Rockville, we work to make every agreement or court ruling part of an enforceable court order.

What You Should Know about Parental Alienation

The importance of determining paternity

Before a father can ask for legal or physical custody of a child, his paternity needs to be established. Married men are presumed to be the father of their wife’s children. Unmarried men can file an affidavit of paternity when the mother is still in the hospital. The mother and father must sign the affidavit within 60 days of the birth of the child. Genetic testing can also be used to confirm paternity, if it shows the probability of paternity is 97.3% or more.

Custody of children born to unmarried parents


Legal custody is the authority to make important decisions for the child, such as those involving healthcare, education and religion. Physical custody determines where the child lives and who provides the daily needs of the child. Parents can either have:

  • Sole legal custody of a child
  • Joint legal custody of a child
  • Sole physical custody of a child
  • Joint physical custody of a child
  • No custody rights

Parents without legal or physical custody can still be awarded visitation rights, such as alternate weekends and alternate holidays. Adoptive parents can also be awarded custody since they are considered the legal parent of a child.

Decisions about who has legal and physical custody are based on a variety of factors, including the condition of the home environment, the ability to be at home when the child is not in school and the desire for a stable environment. These decisions are made between both parents with the help of a family law lawyer and a family judge.

For same-sex couples and LGBTQ parents, the issues are more complicated since one or both parents may not be biologically related to the child. In a 2016 case, the Maryland Court of Appeals approved parental rights for “non-parental” parents. The higher court ruled thatde facto” parents can also seek custody and visitation. De facto parents can be:

  • The partner of a lesbian who undergoes artificial insemination.
  • A gay man whose partner adopts a child from a country that does not allow same-sex couples to jointly adopt.
  • A man that raises a child with a woman for years without formal adoption.

Maryland currently allows two female partners to be identified as parents on a birth certificate. The state does not currently extend the same right to two men.

Understand your non-divorce custody rights by speaking with a Montgomery and Howard County family lawyer today

At McCabe Russell, PA, our attorneys understand your legal rights. If you are being denied custody or the right to see your child because you are not married, you still may have the right to legal or physical custody and to visit with your child. Extending custody rights is not only beneficial to the parent who wants custody, but it is also beneficial to the child. For compassionate advice, please phone us at 443-812-1435 or make an appointment by using our contact form. We are located in Fulton, Columbia, Bethesda and Rockville.