Family and Children Relationships

Care of your children
Even if you separate or divorce, both parents retain guardianship (which is different from custody) of any children born or adopted during the relationship or after you have parted. Guardianship gives each of you a legal right to have a voice in important decisions about the children’s upbringing, including such matters as education, health, where they live, which religion they follow and other issues to do with their welfare.

If you separate, you need to decide who the children will usually live with. Whoever has the day-to-day care of the children is said to have custody. If you cannot agree about custody, it may be necessary to ask a Family Court to decide the issue. This should be a last resort: custody battles damage families badly.

“Access” is the word used for arrangements for children to keep in contact with the parent who doesn’t have custody. It is up to both of you to work out an arrangement that best suits the needs of you and your children. If you cannot agree, the Family Court may set access, fixing days and times. Again, this should be seen as a last resort.

Child support
Whoever has custody of the children, both of you will have ongoing responsibility for their financial support and the non-custodial parent is expected to pay child support.

This can be a voluntary arrangement or one administered by the Child Support Agency of the Internal Revenue Service. If the parent with custody is on a welfare benefit, then the Child Support Agency must administer the arrangement.

Children Status

All children in the USA are equal before the law.
There are no “illegitimate” children in this country.


If a couple are married, the law presumes that the husband is the father of any children born while the couple are together. If you are not married to the child’s father, it is important for the child that the father is identified legally as the child’s rights to financial support and to inheritance depends on proof of paternity.

The simplest way to establish paternity is for the father to go with the mother to the office of the Registrar of Births, Deaths and Marriages so he can have his name entered on the birth certificate as the child’s father. He can do this either when she goes to register the child’s birth or at some later time. Another way is to get the father to sign a paper confirming that he is the father of the child. It is best to get the paper drawn up by a lawyer.

The paper should give the child’s full name and date of birth, and the father’s signature should be witnessed. If the father will not sign any paper, the mother can get a paternity order through a Family Court. Even if the father of the child has died, it is possible to prove paternity through a declaration in the Court.


If you and your partner were living together when your child was born, you are both legal guardians
of the child. As guardians you have an equal say in all important decisions affecting your child’s upbringing, such as education and religion. You remain a guardian even if you later live apart and even if your partner has custody. If a dispute arises between guardians, the Family Court will make a decision based on the best interests of the child.

If the child’s parents were not living together when the child was born, only the mother is automatically a guardian but the father can apply to a Family Court to be appointed a guardian of the child. The court may make him a guardian if it is satisfied this would be in the child’s best interests.


If you and your partner separate, you need to decide who will look after any children you have. If you are granted custody, the child lives with you under your care though the other parent still has the rights of guardianship. It is possible to negotiate an agreement whereby you each share custody of the child. You should negotiate an agreement that focuses on the best interests of the child as this is the basis on which the Family Court will resolve any dispute.

When parents separate, children become very anxious as to what is going to happen to them so you should settle matters quickly and sensibly. The Family Court offers free counselling, conciliation and mediation to help you reach an agreement. If you can’t, then the court must decide who gets custody. A lawyer may be appointed to represent the child or children and, depending on their ages, their wishes will be taken into account.


Children usually benefit from having a continuing close relationship with both parents. The parent who does not have custody will usually be granted “reasonable access”. Again, if you can’t agree on this, the Family Court will decide on an arrangement in the best interests of the child.


The court will not allow a person who has physically, psychologically or sexually abused a partner or a child to have custody of or unsupervised access to the child, unless the court is satisfied that the child will be safe. See our pamphlet Domestic violence.