Red Granite Pictures

Does An Ex Automatically Have Rights To The Kids?

Breaking up is never easy, but when there are children involved, it's a whole new type of sticky situation. From trying to figure out how to make this change to your children's lives to learning what rights do exes have to your kids, it can get complicated. Especially that last lesson — does your ex have unlimited access to your children? Does a divorce differentiate your ex's rights than if you had just been in a relationship? If your relationship was toxic or abusive, does your ex still have a right to your children?

It's not an easy situation to go through, even if you and your ex broke up on amicable terms and are determined to do what's best for your children. Egos are big, everybody (hopefully) wants what's best for their kids, and everybody is trying to move on and live a happy, healthy life. So where does your ex stand in regards to your children? Well, it depends.

Randall Kessler, founding partner of Kessler and Solomiany, litigation professor at Emory Law School in Atlanta, and author of Divorce: Protect Yourself, Your Kids, and Your Future, tells Romper that your relationship status can make a difference in the rights your ex has to your child. "In a divorce, custody is rarely awarded to just one party," Kessler says. "Commonly, joint custody is awarded, with one parent being designated as the primary custodial parent — this makes both parents feel more vested in the parent-child relationship."

But if you and your partner were just dating, things are a little more complicated. "With non-married spouses, the mother has custody until the father 'legitimates' as provided by law," Kessler says. This means your ex has to prove to the courts that they are a parent to your child in order to obtain any custody arrangement. Kessler notes that even if your ex's name is listed on the birth certificate, this isn't always enough "It is a good start and harder for a father to deny he is the father, but the birth certificate alone does not bestow rights," he says. And if there is no court order, then according to Kessler, the mother has all the legal rights to the child.

But custody isn't the same as whether your ex has parental rights.

Jonathan Breeden, a family law attorney near Raleigh, North Carolina, tells Romper that parental rights derive first and foremost from being a biological parent, unless the parent has waived or lost their rights through a court proceeding. "As such, a former partner who is a child’s biological parent will have parental rights under the law regardless of whether the parents were married, unless the parent waived his or rights or had them terminated," Breeden says. "Under North Carolina law, for example, the father of a child born out of wedlock can have parental rights terminated under N.C.G.S. 7B-1111 when, prior to someone filing a petition or motion to terminate rights, the father hasn’t provided financial support for the child, legitimated the child by marrying the mother or filing appropriate paperwork, or established paternity."

Basically, if your ex is your child's biological parent and has provided financial support and established paternity, they inherently have some kind of parental rights. But Breeden notes that having parental rights doesn’t necessarily lead to the parent having custody of the child. "Custody determinations are based on numerous complex factors that ultimately add up to what’s in the best interest of the child," he says. And questions of parental rights and/or custody can become even more complicated if stepparents are involved or if you were in a same-sex relationship and only one of you is the biological parent. "In these cases, it may fall to a court to decide what rights a former partner may have with regard to a child, and what's in the child's interests," Breeden says.

But your ex has to follow a court order, if there is one, in regards to your child. Kessler notes that things like a restraining order, especially if it's based on violence, between you and your ex can affect their parental rights and custody case. Your ex can also not take your child whenever they please or go against any kind of court order without consequences.

If you don't have a court order stating who can have the child and you're both listed on the birth certificate, your ex may have more rights in the eyes of the law than you realize. According to the website for Prince Law Offices in Pennsylvania, if there is no custody order being enforced by the courts and you and your ex are both biological parents and have an equal right to custody, your ex could have the same rights to your child as you do. Meaning you can both lawfully take physical possession of your children at any time (although it doesn't look great for future court hearings).

In short? It all depends on the factors surrounding your situation. Was your ex a biological parent to your child? Do you have a restraining order against them? Do you have a custody arrangement? Are they on the birth certificate? If you're worried about the amount of parental rights an ex has to your child, contact a lawyer so you can have legal documentation about custody and visitation to protect your child, your ex, and yourself.