For fathers who aren’t married, questions about what used to be called child custody can create real anxiety. You might be worried that you’ll lose contact with your child, or unsure about your legal position if your relationship ends. In England and Wales, unmarried parents start from a different position under the law than married parents, but the court does not give automatic preference to either parent based on marital status.

Instead, decisions about a child’s living arrangements and upbringing are based on what the law calls parental responsibility. Here, the unmarried couple separation solicitors at Switalskis explain who automatically has parental responsibility, how it can be obtained and what unmarried parents can expect if decisions end up being made in court.

What does parental responsibility mean in a legal context?

Parental responsibility is a legal term covering the rights, duties, powers, obligations and authority that parents have in relation to a child. Anyone with parental responsibility must be involved in  important decisions about:

• A child’s education.
• Medical treatment.
• The child’s religion.
• The child’s name.
• Managing the child’s property and financial provision.
• Day-to-day aspects of the child’s upbringing.

More than one person can have parental responsibility at the same time, and each person who has it holds equal legal status when making these important decisions. Parental responsibility does not determine who the resident parent is, and it does not restrict regular contact between a child and the non-resident parent. Day-to-day care and decision-making rights are separate issues, which is why understanding who has parental responsibility is a key part of understanding your position as a parent. 

Who has parental responsibility if the parents are not married?

The legal starting point is different for unmarried parents:

• The child’s mother automatically has parental responsibility regardless of marital status.
• The child’s biological father will also gain parental responsibility if he is listed on the child’s birth certificate (for children born on or after 1 December 2003).
• A child’s biological father will automatically have parental responsibility if he is married or in a civil partnership with the mother at the time the child is born.

If a child’s biological father is not named on the birth certificate or in a formal relationship with the mother, he does not have automatic parental responsibility.

This significant difference between married parents and unmarried parents often affects how decisions are made about the child’s life. However, there are legal steps a father can take to acquire parental responsibility and be involved in decisions about the child’s life.

How can an unmarried father obtain parental responsibility?

There are several routes for an unmarried father or other parent to obtain parental responsibility under the law in England and Wales.

Being added to the child’s birth certificate: if both parents agree, the birth can be re-registered to include the father’s name. This gives parental responsibility from the date of re-registration.

Parental responsibility agreement: parents can sign a parental responsibility agreement, which is a written agreement confirming that the father or second parent will share parental responsibility. This must be registered with the court to take effect.

Parental responsibility order : if parents cannot agree, the father can apply to the family court for a parental responsibility order.

When the court considers relevant factors, it will usually look at:

• The father’s level of commitment to the child.
• The quality of the relationship between the father and child.
• The father’s ability to exercise parental responsibility appropriately.

A parental responsibility order does not decide where the child lives, but it gives the father equal rights in decisions about the child’s upbringing and the opportunity to become the resident parent.

Does being unmarried affect who the child lives with?

The family court does not give preference to one parent simply because they are married or unmarried. When making decisions about child arrangements, the interests of the child outweigh everything else.

The court considers:

• The child’s age and physical needs.
• The child’s emotional needs and relationships with each parent.
• The home environment and stability each parent can provide.
• Any risks affecting the child’s safety.
• The likely impact of changes to their routine.
• Whether each parent supports the child’s relationship with the other parent.

Decisions about where the child lives and how often the child spends time with each parent must reflect the child’s welfare, not the legal status of their parents’ relationship.

How does the court make decisions about child arrangements?

Many separated parents agree contact arrangements themselves or through mediation, but if not, either parent can apply for a child arrangements order. This process asks the court to set out:

• Where the child lives.
• How much time the child spends with each parent.
• How contact should take place.

The court can also be asked to make individual decisions through a specific issue order, if needed.

During court proceedings, the Children and Family Court Advisory and Support Service (CAFCASS) usually carries out safeguarding checks and may speak with the child, depending on their age. The court will consider reports from professionals involved in the child’s care.

The court can also base decisions on matters such as child maintenance, though this is usually dealt with through the Child Maintenance Service rather than the court itself unless there are additional financial responsibilities or complex legal consequences that need resolving.

It's important to retain the services of a solicitor that specialises in unmarried couple separations during this process. The team at Switalskis can advise on your rights and gather information that supports parental responsibility and full custody.

Where communication with the other parent has broken down, your solicitor can guide discussions or prepare the necessary documents for the family court.

Get in touch

If you’re unsure about your position as an unmarried parent or you’re facing a separation, the family lawyers at Switalskis can talk through your situation and explain your options. Call us on 0800 138 0458 , or get in touch through the form on our website .