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Fathers' Rights

Fathers' Rights

When it comes to the rights of fathers with regard to child custody and visitation, courts used to follow strict presumptions about the genders of the parents and child-rearing. That is, in the past, courts used to follow guidelines shaped by traditional gender-specific roles of fathers and mothers. The notion was that the father was considered to be the breadwinner for the family, while the mother was expected to be responsible for child-rearing.

Thus, in situations where the parents were separated or divorced, courts would often award custody to the mother, so she could focus on raising the child. Meanwhile, the father was often granted visitation rights, so they could focus on earning money and contributing child support.

Older laws also made various conclusions regarding presumed fathers (non-biological fathers being treated as if they were the father, based on their actions and relationship to the child or mother).

Currently, states for the most part have adopted a more gender-neutral approach, dropping the traditional notions of breadwinner vs. child caretaker, and examining the relationship between the parties on a case-by-case basis.

What this means is that fathers are no longer automatically granted visitation rights and the mother granted more custody rights, as in the past. Instead, courts will look at each case and determine what works best for the child. That is, most child custody and visitation determinations will be made according to the “child's best interest standard”.

This means that courts will look at the background, work arrangements, and other factors of each parent, and determine which custody and visitation arrangement fits best for the child (not the interests of either parent). For instance, if the child already has a well-established relation to the father as their caretaker, then courts might grant the father custody rather than the mother.

Standard for Child Custody and Visitation

As mentioned, child custody and visitation arrangements are now made according to the child's best interest standard, and not according to traditional societal notions attributed to each parent.

Thus, custody rights for fathers have effectively expanded in recent times. They are no longer automatically presumed to be just a breadwinner who can visit from time to time. Instead, courts will look closely at all the factors and create an arrangement which best benefits the child or children. If this means that the father should have physical custody, then that is what courts will conclude in the custody/visitation arrangement.

However, this doesn't mean that more traditional arrangements may still result. Courts may still award the mother with more custody rights if this is in the child's best interest. In determining the child's best interest, courts will examine many factors, including:

  • The child's background, such as their gender, age, educational level, and whether they have any medical or psychological/emotional needs;
  • Each parent's ability to care for the child;
  • Each parent's current and previous relation to the child; and
  • Various other factors, including the living situation and home environment for the child.
  • What are a Father's Rights Relating to Paternity?
  • In most cases, before the court gets to the broader questions of custody and visitation, they must often determine that the person has paternity rights. A person who is granted paternity may then be eligible for various child and visitation rights normally available only to the child's father.

In many instances, a paternity test can conclusively determine whether a person is the biological father of a child. If so, they will then be granted various paternity rights as well, including custody and visitation determinations as the court sees fit.

A person who is not the biological father of the child can still obtain parenting rights. These include situations such as:

  • Non-biological fathers who have raised the child as their own and have developed a parent-child relationship already;
  • Adoptive fathers; and
  • Various other parties like grandparents (in rare cases).

Establishing Paternity

Paternity is an issue that frequently comes up in child custody cases. Paternity simply means that an individual is the biological father of a child. Biological fathers are granted certain rights over their children, including custody. Thus, in order to be able to exercise such rights, an individual may need to establish paternity (i.e., that they are the child's father). 

There are several ways to establish paternity. One method that is often used to prove paternity is by having a potential father take a paternity DNA test. A paternity DNA test is a medical exam that will require the father to provide a sample of their DNA to a lab where it will undergo scientific analysis and return results that state whether or not they are the child's biological father. 

Paternity can also be established by having both parents sign and file a form with the court that acknowledges that an individual is in fact a child's biological father. With this method, the parents will most likely need to attach the child's birth certificate to the form and submit it to the court for proof as well. 

In most cases, courts prefer to grant custody to a child's biological parents if and whenever it is possible (e.g., both parents are fit). This is because of a long-held belief that giving custody to a child's biological parents is in the best interests of the child. Therefore, one way to ensure fathers can get custody of a child is to establish paternity and prove that they are the child's biological father. 

Additionally, a father may be granted custody of a child if the mother is unfit to raise them, becomes incapacitated, or dies. A father may also get custody of a child if the court determines that the father is in the best position to raise them in accordance with the child's best interest standard. 

Other Issues Related to Paternity

Just as courts may need to establish paternity, there are many instances where the parties may be interested in contesting paternity. This is common in cases where there may be a dispute over custody or visitation rights.

For example, it may be the case that one person is claiming that they are the biological father of a child, and are seeking to establish new custody or visitation rights for themselves. If another person is already claiming custody and visitation rights, they may seek to challenge the paternity of the person claiming they are the biological father. If it is shown that the person is not the biological father, then that person might be disqualified from gaining custody or visitation rights.

Lastly, one issue to consider is whether the person has their name listed on a birth certificate as the child's father. Under most state family laws, if a person is already named as the father of a child on the child's birth certificate, then they are presumed to be the legal father for all purposes. This includes any determinations related to child custody or visitation. In such cases, the presumption of paternity can be very strong and difficult to contest.

Biological Father's Rights In Regards to Adoption

Determining a child's paternity is essential for establishing a variety of legal matters involving the child. This includes determining child custody, obligations for child support, inheritance rights, and visitation rights. The rights afforded to biological fathers depend upon the legal categorization of the father. These categorizations may include:

  • Putative Father: This term refers to the alleged father of the child. A putative or alleged father is most commonly defined as a man who alleges himself to be the biological father of the child, but has not legally established his paternity;
  • Unmarried Father: According to the law, unwed fathers are treated differently than married fathers in regards to paternity rights. In general, states define an unmarried father as the child's biological parent who was not married at the time of the child's birth. The paternity of unmarried fathers is not presumed. This means that unmarried fathers must sign an acknowledgement of paternity in order to legally establish their rights as a child's father. Once a father has been determined to be the father of the child, they will have the full legal obligation of caring for the child, such as by paying child support; and
  • Presumed Father: This is typically the person presumed to be the father of the child due to meeting certain conditions. These conditions include:
      • When a child is born during or shortly after a divorce in which the husband of the marriage is considered to be the child's father; 
      • When the presumed father acknowledges the paternity of the child voluntarily; or 
    • When the presumed father openly acts and behaves as if the child were his own, such as by receiving the child into his home.

Once paternity has been established, the father has the right to child visitation and custody. If a father has custody of their child, they will be able to make decisions regarding the upbringing of the child.

When going through the adoption process, a biological father has a constitutional right to be notified of paternity for a child who is being put up for adoption. If he believes the adoption should not proceed, and would like custody of the child, he has the right to be heard in court and initiate a paternity proceeding. Under such proceedings the father may be given custody of their child once he establishes paternity and proves that he can care for the child on his own.

Other rights granted to the biological father throughout the adoption process include:

  • The right to participate in the adoption planning;
  • The right to participate in interviewing prospective parents;
  • The right to receive limited financial support for pregnancy and birthing medical expenses, if applicable;
  • The right to select the adopting family; and
  • The right to receive counseling during and after the adoption process.

Protecting a Biological Father's Rights During the Adoption Process

One of the main biological parental rights is the right to consent, or the right to object, to the adoption of the child. In general, both biological parents must consent to an adoption if they have met certain requirements that establish them as the child's biological parents. Therefore, courts grant both biological parents the right to consent or object to adoption.

If the child's biological father is not known or cannot be located, many states require that some sort of public notice be given in order to inform all people claiming to be the child's biological father of the pending adoption. This typically takes the form of a notice published in the legal advertising section of the local newspaper.

Many adoptions occur without the involvement of the child's biological father. In fact often biological father's do not receive any notice or counseling, have the option to consent or reject, or are involved in selecting the adoptive parents. However, this does not mean that they do not have these rights. Every adoption that proceeds without the biological father's knowledge or consent carries a certain degree of legal risk.

In order to protect the biological father's rights and potentially avoid legal issues later on, the child's biological mother should:

  • Inform the child's biological father of the adoption plan, and ask if he is interested in participating in the adoption process and proceedings;
  • Attempt to locate the missing biological father and inform him of the plan for adoption; and
  • Obtain consent to proceed with the adoption process from the biological father.

Not every state requires that the biological mother take these steps in order to locate and protect the biological father's rights. The burden is on the biological father to determine whether he has a child with another person. In these states, the amount of time in which a biological father has to respond to a notification of adoption proceedings varies.

Biological Father Blocking an Adoption

Once again, not every state requires the biological father's consent for an adoption to proceed. It is also dependent upon the relationship between the father and the child, and the relationship between the two biological parents. However, in nearly every state, an adoption cannot proceed without the father's consent if the biological parents are or were married within a certain amount of time before the child's birth. If the biological parents were not married, but did live together at the time of the child's birth or within a certain time before, some states require the father's consent.

If the biological parents of the child were never married and never lived together, most states do not require the father's consent. As previously mentioned, fathers are given notice of the intent to place the child for adoption, and if he does not challenge the adoption, his parental rights to the child will be terminated. Should he challenge the adoption, a hearing will be held in order to determine whether the adoption is in the child's best interest. In order to block an adoption, the biological father must do the following:

  • Establish Paternity: The father must file a court action in order to establish his parental rights by proving paternity through a DNA paternity test;
  • Commit to the Child: Most states do not allow the biological father to block the child's adoption unless he has taken every reasonable measure to accept his responsibilities to both the mother and the child; and
  • Make Reasonable Visits and Communicate: The father must be involved in the child's life by attempting to communicate with them, and regularly visiting them according to the mother's wishes.

Should I Hire a Lawyer?

As a parent, it is crucial that you understand the legal rights you have over your child or else you may be giving up important privileges without even knowing it. Therefore, if you have any questions or need assistance with a child custody issue, it may be in your best interest to speak to a local child custody attorney immediately for further advice.

An experienced father rights attorney can explain about the different types of parental rights you have under the law and can make sure that those rights are being protected. Your lawyer can also help you navigate the various requirements and procedures for a child custody and/or parental rights case, and can assist you in reaching a fair solution. 

Finally, if you believe that the other parent is unfit to raise your child and that you should retain full custodial rights, your lawyer can file an emergency protective order with your local family law court to ensure that your child's health and well-being are not at risk.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.