Rights of Unwed Fathers

In the last 20 to 30 years, the number of children born to unwed parents has exploded. The reasons for this societal shift are closely related to feminism, women becoming more financially independent, and the fact that divorce and unwed parents have become socially acceptable.

Divorce attorneys aren’t the only ones to notice this trend, the government has acknowledged it as well. According to childwelfare.gov, “the significant percentage of births to unmarried parents has led to an increased focus on the fathers of these children.”

In legalize, unwed fathers are commonly referred to as alleged or presumed fathers and they’re making a stand when it comes to their parental rights. Across the United States, family law attorneys and family courts have fathers coming to them, seeking to have their legal rights recognized. They’re also seeking larger roles in regards to raising their children.

In the 1990s, it was “normal” for fathers to see their children once a week and on every other weekend, but today’s fathers are playing a more active role in the childrearing process, and they’re making sure the state laws are backing them up.

History of Fathers’ Rights

Historically, unmarried fathers did not enjoy the same rights to their children as married fathers who obtained a divorce, nor did they have the same rights as the unmarried mothers – they truly got the “shortened of the stick” as the old saying goes.

However, in the past 20 years, fathers’ rights have been steadily evolving. For example, in recent years unmarried fathers have been challenging the termination of their parental rights under the Fourteenth Amendment when unwed mothers were trying to put their children up for adoption.

Several of these adoption cases were taken all the way to the Supreme Court, which ultimately confirmed that unmarried fathers have constitutional protections when they demonstrate that they’ve established a “substantial relationship” with their child.

Biological Link Gives Fathers Opportunities

The U.S. Supreme Court determined that due to the “biological link” between unmarried fathers and their children, fathers have the right to establish substantial relationships with their children. However, the key word here is “substantial.” In order to establish a substantial relationship with one’s child, the father must do one or more of the following:

• Demonstrate that he’s involved in the child’s life
• Show that he is committed to being a father
• Attempt to be involved in the child’s upbringing
• Establish paternity voluntarily or through a court order

In cases where paternity has not been established legally, the states have discretion when it comes to terminating a man’s parental rights for the sake of an adoption. Many states have gone so far as to create “paternity registries” that allow unwed fathers to voluntarily acknowledge paternity, California, however, follows other guidelines.

While at least 24 states currently have what are called “putative father registries,” California does not. According to the American Academy of Adoption Attorneys, instead of using putative father registries, 11 states, including California, have forms that are filed with registrars of vital statistics and social service departments that allow parents to voluntarily acknowledge paternity.

When an unmarried father in Los Angeles legally acknowledges paternity, he receives certain rights, including the right to receive notice if an adoption action or an action to terminate the mother’s rights is filed with the courts.

California’s Definition of a Father

In California, the legal definition of a “father” can be found under Family Code §§ 7601; 7611. Generally, a man is presumed to be a child’s natural parent (nonadoptive parent) under the following circumstances:

• The presumed father is married to the child’s mother and the child is born while they are married, or the child is born within 300 days of the marriage dissolving.
• Before the child was born, the presumed father and the child’s mother attempted to get married, but the marriage was deemed invalid by a court and the child was born within 300 days of the attempted marriage, or the attempted marriage was invalid (no court order) and the child was born within 300 days of the parents living separately and apart.
• After the child was born, the presumed father and mother entered into an invalid marriage or attempted to marry, and even though the marriage was invalid, the presumed father’s name was put on the child’s birth certificate with his consent, or the court ordered the presumed father to pay child support, or the presumed father received the child into his home and expressed that he was the child’s natural father.

Effects of Establishing Paternity

If a child is born out of wedlock and none of the above on the bulleted list applies, a presumed father has no legal rights or responsibilities toward his child until paternity is established legally, even if he’s been living with the child’s mother.

It is not uncommon for unmarried parents to cohabitate, sometimes for years before they have children. Often, the couple has no intention of marrying, or they are in no hurry to tie the knot.

If their child is born out of wedlock and the presumed father has any reason to doubt paternity, he may be reluctant to voluntary acknowledge paternity at the hospital after the child’s birth.

Or, it may be the natural mother who isn’t sure, so she hesitates to put her boyfriend’s name on the form. Regardless of the circumstances, whenever there is doubt about paternity, the presumed father should have his DNA compared to the child’s after the birth.

Once paternity is established by the court through genetic testing, the court can proceed with orders for child support, child custody and visitation. When paternity is confirmed, the unmarried father automatically has all the same rights and responsibilities towards his child as a married father who is divorcing his wife, the mother of his children.

Are you a father who needs a paternity test, or who otherwise needs to exercise is father’s rights? If so, contact our Los Angeles family law attorneys today for a free consultation!