When unmarried parents separate, questions often arise about who gets custody of the child and what the Australian Family Law system says about parental rights and responsibilities. It’s a common misconception that being unmarried limits your parental rights — in fact, Australian Family Law treats both parents equally, regardless of marital status.
This article explains what unmarried parents need to know about child custody, how parental responsibility is determined, and what steps can be taken to secure your child’s future under the law.
The Legal Standing of Unmarried Parents
Under the Family Law Act 1975, both parents — married or not — generally share equal parental responsibility for their child. This means both have the right to make decisions about their child’s welfare, education, healthcare, and upbringing.
In practice, the court’s main concern is the child’s best interests. Whether parents are married, in a de facto relationship, or separated, the same principles apply when determining custody or parenting arrangements.
If both parents are listed on the child’s birth certificate, their legal rights are recognised equally. However, for fathers who are not listed or where paternity is uncertain, DNA testing or a court declaration of parentage may be required to confirm legal rights.
How Custody Is Decided
The term “custody” isn’t officially used in Australian law anymore — it’s now referred to as “parental responsibility” and “living arrangements.”
Unmarried parents can make parenting arrangements without going to court. This can be done through a Parenting Plan, a written agreement that outlines living arrangements, visitation, and decision-making responsibilities.
While a Parenting Plan isn’t legally enforceable, it reflects the parents’ intentions and can later form the basis of Consent Orders — which are legally binding and approved by the court.
Creating these agreements through mediation or with the help of a Family Lawyer can prevent costly disputes and maintain a cooperative relationship for the sake of the child.
What Happens if Parents Disagree
If parents cannot agree on custody or parenting issues, the matter can be referred to Family Dispute Resolution (FDR) before court proceedings begin.
Mediation services, such as those offered by Family Relationship Centres, can help both parties reach a fair solution.
If mediation fails, the case may proceed to the FCFCOA, where a judge decides based on the evidence, reports, and the child’s best interests. The court may appoint an Independent Children’s Lawyer (ICL) to represent the child’s views.
If you’ve lived together and shared parental duties, you are legally recognised as a parent and can apply for parenting orders just as a married parent can.
It’s essential to document your involvement in the child’s life, such as financial support, school participation, and daily caregiving, as this strengthens your position in any custody-related discussions or proceedings.
Seeking Legal Guidance
Family law matters can be complex, especially when emotions are high. Seeking professional legal advice ensures that your rights — and your child’s future — are protected.
A Family Lawyer can help you:
Draft or formalise parenting agreements
Apply for or respond to custody orders
Navigate paternity and parental responsibility disputes
Whether married or not, both parents have significant legal rights and responsibilities towards their child. The key focus of Australian Family Law is always the child’s best interests, not the parents’ relationship status. By understanding your legal standing and seeking timely advice, you can create a stable, supportive environment for your child.
At New South Lawyers, our experienced Family Law team can help unmarried parents understand their custody rights and achieve fair, practical arrangements.
We’ll guide you through every step — from negotiation and mediation to court representation — ensuring your child’s wellbeing comes first.
