Who Counts as a Legal Parent | Legal Fathers & Mothers

Legal parenthood means someone is the child's parent in the eyes of the law. The legal definition of parent is the mother or father of a person, whether that relationship came to be through birth or through legal means.

A child can have up to two legal parents.

If you have legal parenthood, you have parental rights and responsibilities. When a child has two legal parents, those parents have equal rights and responsibilities until a court decides otherwise.

Without legal parenthood, you have no legal recourse if the other parent refuses to let you see your child or refuses to help out financially.

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What makes someone a legal parent

In general, both spouses are the child's legal parents when one of them gives birth to a child during their marriage (or within 300 days of their divorce). This may differ for same-sex spouses, depending on the state they live in.

Only the mother is the legal parent when a child is born to unmarried parents. The court cannot enforce the father's rights until he is established as the child's legal father. (See next section.)

Surrogate pregnancies present exceptions to these rules and are handled differently by each state. Consult a lawyer before pursuing surrogacy.

If a child is born via assisted reproduction, the donor is not considered the child's parent. They can't become the child's parent solely on the ground that they are the donor.

Adoption is another way to establish legal parenthood. When it comes to same-sex parents, the nonbiological parent is often advised to adopt the child to protect their parental rights.

Methods of establishing a legal father

Establishing legal parenthood is most commonly necessary for the father.

In all states, confirmation of paternity (legal fatherhood) is required for the courts to issue custody or child support orders for unmarried parents. But the ways you can establish paternity depend on your state. In some states, signing the child's birth certificate is enough. Elsewhere, you have to take extra steps.

If the alleged parent and legal parent agree on parenthood, they can sign a voluntary acknowledgment of paternity. Same-sex parents can do this in some states: California, Colorado, Connecticut, Maine, Maryland, Massachusetts, Michigan (starting in 2025), Nevada, New York, Rhode Island, Vermont and Washington.

When the alleged and legal parents disagree, they can go to court. A paternity case establishes the identity of the child's legal father. This often involves genetic (DNA) testing. Even if the child is not biologically related to the alleged father, a family court can give the man legal-parent status if he has acted in a parental role.

Legal parenthood versus guardianship

Legal-parent status can only go to someone the court considers the child's parent. Guardianship goes to someone who is not the child's parent.

A person with legal parenthood makes all important decisions for a child. Generally, a guardian only makes everyday decisions affecting the child's care and welfare. A child can have a guardian (or co-guardians) even if they have two legal parents.

Losing custody versus losing parental rights

You're still considered the child's legal parent if you lose custody.

Termination of parental rights strips a parent of legal parenthood. Termination is rare and only occurs when a court rules that a parent is a danger to their child's welfare. If both parents lose their rights, or if the child's only legal parent loses their rights, then the child might live with a legal guardian, go into foster care or be adopted.

When legal parents need to decide custody

When a child's legal parents aren't married to each other (perhaps they divorced or never married), they should have a clear child custody arrangement.

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