Easily, the question I get asked most often in Family Law, is what are an unwed person’s rights regarding his or her children. I wish they taught Paternity laws as part of high school Sex-Ed. I feel like young people would be much more careful with what they do in their free time, if they knew the legal ramifications of certain extra-curricular activities. There is so much ambiguity out there concerning unwed parents’ rights, or rather an unwed father’s lack of rights. To the unwed fathers out there, let me be very clear; you have no rights, none. You can have your rights asserted in court, but until you do, you have absolutely no legal say in your child’s life. Unwed mothers, you hold all the rights over your children.
Mothers, without a court action to decide custody, you have all the decision-making authority over your children. You can enroll them in school, decide which doctor will treat them, when and if they have visitation with their father, or even leave the state without their father’s consent. Until there is a court order asserting an unwed father’s paternity, issued by the court, mothers are the only ones with rights to and over a child.
Now, why does the court do this? Is there some legal aversion to fatherhood, is the state discriminating against men? No, the reality is much simpler than that; the state has no idea who you are, in relation to your child. There is a presumption of paternity in marriage. It makes sense, if property bought in the course of marriage belongs to both the husband and wife, and both the husband and wife are responsible for contracts entered into for the benefit of the marriage; then children born of the marriage belong to both the husband and wife. But if the parents are not married, then as far as the state is concerned, there is no legal relationship between mom and dad. Maybe two people had a causal hook up, once time, at a party; maybe two people have been seriously dating and living together for ten years. The state can’t tell the difference, and therefore it doesn’t care. If there is no legal relationship, then there is no reason to assume that the random guy who claims to be dad, actually is the father of the child in question. He could just be some crazy neighbor from down the street. We always know who the mother is, she’s the woman who was pregnant for nine months and gave birth in a delivery room. But figuring out who the father is, legally speaking, can be a bit of a process.
First, it’s not enough to just want to be proclaimed the legal father. Again, we don’t want guys just randomly claiming paternal rights over any kid they see. You must have “standing”, or a set of circumstances that give a person grounds to pursue a legal action. In a paternity action, standing is determined by establishing that the mother and potential father were involved in a sexual relationship at the time the child was conceived; and there is no one else who could be the biological father, or the father is listed on the birth certificate, or a DNA test has been conducted confirming paternity, or the father has acted like a father to the child for a certain number of years. Then one of the parents, either mom or dad, must file a petition with the court asking the court to declare a father-child relationship, establishing paternal rights; this is usually accompanied with a proposed parenting plan, or contact schedule. The other party must be served with the petition and proposed parenting plan and given time to respond to the petition, usually 30 days. The petition itself does not establish paternal rights, neither does the answer to the petition. Paternal rights usually are not established until a court order is issued declaring a parent-child relationship, awarding some form of custody to the parties, and usually establishing child support. This can occur in either: temporary orders, the middle stage of the paternity action; or in final orders, the end stage of the paternity action.
So, when is the best time to seek a paternity action; my opinion is, as soon as possible. Whether mom is still pregnant, or dad found out when the child is twelve, a father should seek a paternity action as soon as he knows about the child. What about those parents that are still together, or separated, but cooperative about the child? That’s the absolute best time to seek an official custody award and contact schedule, when you still like each other enough to be fair and considerate with one another. If you live together, the court won’t order child support. And if the two of you cooperate very well, you don’t have to follow the contact schedule filed with the court. But fathers, you do want the official court orders declaring your legal custody and paternity. If nothing else, it gives you a legal right to have a say in your child’s life; and most importantly, it protects your relationship with your child should something happen to the mother. Remember, without that declaration of paternity and award of custody from the court, the state doesn’t know who you are in relation to the child. If something happened to the child’s mother, the care of the child goes to the mother’s next of kin, not to the child’s father. If you can’t be married to mom at the time that the child is born, then always, always, always, file a paternity action as soon as you know you have a child. It’s the only way to establish and protect your rights to your children.