Do I Need a Fathers' Rights Attorney?

Many accurately refer to these issues as family law matters. Oftentimes, unmarried fathers feel they have been left out of the legal process. State laws generally provide that when a child is born to an unmarried mother, she becomes the legal custodian of the child. If the child's mother receives government assistance, the state may pursue paternity and child support from the child's father. In these circumstances, some may not understand the rights of fathers.

The biological father of a child must take some action to establish his parental rights. Establishing paternity rights is only the first step in asserting a father's rights. Other steps can include child custody, parenting time, and child support. In appropriate cases, they may involve weighing consent to an adoption. In such situations, fathers may have questions about their rights and the legal process. They may consider talking to a fathers' rights lawyer.

Fathers' Rights and Paternity Actions

Paternity refers to establishing the legal father of a child.

Often, paternity issues happen in cases that involve child support. They can also be important in relation to adoption, inheritance, legal custody, visitation, and health care.

Many states require establishing paternity by a "preponderance of the evidence." This is a relatively low standard of proof. To demonstrate the father-child relationship, you prove that you are more likely than not the father of the child.

State law will vary on the legal procedures. As an unmarried mother has custody rights at birth, an unmarried father is the non-custodial parent at that time. He can establish paternity voluntarily when he signs an acknowledgment of paternity affidavit along with the child's mother. This usually occurs at birth or shortly thereafter.

When the parents do not agree, either parent or the state may file a paternity action in court. Courts may order the father to appear for genetic testing in family law cases. They may also order the mother to appear and present the child for a DNA test. Such tests can have an accuracy of 90-99% certainty that an alleged father is the biological father of a child. Where the test results reach the legal threshold, the court will make a finding of paternity. The finding of paternity gives a father access to many other parental rights, including custody rights.

Fathers and Adoption

In all states, the child's mother and the child's father hold the primary right to consent to the adoption of their child. When parents are married when a child is born, there is a presumption that the husband is the father of the couple's child.

However, for an unmarried father to have the right to consent to an adoption, he must first establish paternity. When both parents have the right to consent, the adoption can proceed.

A court may terminate a parent's rights to a child over a parent's objection under certain circumstances. For example, a court may terminate parental rights and permit an adoption to proceed when it finds the parent:

1. Abandoned the child
2. Failed to support the child
3. Has mental incompetence or severe alcohol or drug abuse
4. Is unfit due to child abuse or neglect

All adoptions of children must be approved by a court. Adoption proceedings have specific procedures that may vary state by state. The party seeking the adoption will file a petition in court. All interested persons must receive notice of the petition and the hearing date. That can include the biological parents of the child, the adoption agency (when used), any state agency, or temporary custodian (when appropriate). For older children, the law may require notice to the child as well. The court may require counseling for the child's well-being.

Sometimes, the court may appoint a Guardian ad Litem (GAL) for the child. This is an attorney representative for the child. The GAL can make recommendations of what is in the child's best interest. The Guardian ad Litem can recommend joint custody of the child. The GAL can recommend that the father have primary custody of the child.

If both parents consent to the adoption, the process will often be less lengthy. If a party objects to the adoption, then the court must hold a contested hearing and issue a ruling. In a contested adoption, it will need to find clear and convincing evidence to terminate parental rights of the birth parents. It must also find the adoption is in the best interest of the child. The clear and convincing evidence standard is higher than the preponderance of the evidence standard.

States have different rules about waiting periods before adoptions. Some states may allow the birth mother only a few days before her consent becomes irrevocable. Other states may permit a longer time.

Child Custody and Visitation

After establishing paternity, a father can seek child custody or visitation rights for his child. In some states, a father may file this request at the same time he files to establish paternity. In other states, he may need to wait until the court issues a paternity ruling. A father can seek to address custody and visitation by agreement with the child's mother or through a contested court proceeding.

Parents can meet and write up agreed terms for custody and visitation. They can do so with or without attorneys. They may use third-party mediation to reach an agreement. Mediation occurs when a neutral third-party mediator (often an attorney) helps the parties discuss the terms of a parenting plan agreement.

The custody and visitation agreement can set forth terms of shared or sole custody. It can address many facets of the child's life. It can set the parenting time or visitation schedule. The schedule can indicate when the child will be in each parent's care and control. It can include balanced time for holidays with the child. The agreement can also address where the child will attend school. It can address how the parents make important decisions for their child. A parenting plan agreement may provide a list of approved caregivers. It may also provide details on child support, health insurance, and the sharing of the child's out-of-pocket health care bills.

If the parties do not agree, the court may appoint a Guardian ad Litem to recommend terms of custody and parenting time that will be in the child's best interest. At a contested hearing, the parents, the GAL, and other witnesses can testify and present evidence. The court will review all the evidence before ruling. Courts will consider the best interests of the child when issuing a decree.

Over time, each party can return to court and seek modifications to the original decree. A party will want to show reasons that support a change in circumstances. For example, a father may assert that the parties now live in closer proximity and the child will benefit from more physical custody with the father. The court will need to find that any modification is in the child's best interest. The father may provide evidence that one or both parents' jobs or incomes have changed. He may seek a reduction in the child support amount. The court can review changes in income and consult the state child support guidelines. The court will look for a substantial change in circumstances. It can conclude that a reduction in child support is appropriate and in the child's best interest.

Divorce, Legal Separation, and Dissolution

Divorce and dissolution are both ways to end a marital relationship. When parties agree on all terms, they commonly proceed with a dissolution action. When parties do not agree on all terms, the court schedules contested divorce proceedings. A legal separation may occur when parties decide to separate their households (and financial lives) but not end their marriage. The legal separation decree will address substantially all the same terms found in a dissolution or divorce.

As a dissolution requires an agreement to proceed, courts resolve such actions on a shorter timetable. An action for legal separation or divorce does not require an agreement by the parties. However, parties may reach an agreement prior to their trial date. If they do reach an agreement, then they will proceed with an uncontested hearing before the family court.

In all three cases, the court will resolve issues of child custody and parenting time when the parties have children. The court will also approve a division of marital assets and debts between the parties. This may include selling the marital home or a business. The court will provide for a fair division of the parties' vehicles and personal property. The court will issue rulings related to spousal support (alimony) and child support.

In any of these actions, the court may require the parents to complete documents that state their assets, debts, and income for support purposes. A father can assist a family law attorney by timely completing such forms and providing all relevant financial information to his attorney.

State laws may vary on how to divide assets and liabilities. For example, in retirement assets, the court may only divide the marital share. If a party started paying into a pension or 401K prior to the marriage, then that portion paid before the marriage may not be subject to division between the parties.

Fathers' Rights Before Birth

Generally, fathers' rights before birth have been limited. Federal privacy law provided mothers with almost exclusive rights regarding the fetus or unborn child. Mothers' rights had primacy during pregnancy. Only mothers carry a child through pregnancy to birth. Health care for the fetus or unborn child could only happen with a mother's consent.

In Dobbs v. Jackson Women's Health Organization (2022), the U.S. Supreme Court overruled the almost 50-year case precedent of Roe v. Wade (1973) that recognized a women's constitutional privacy right to abortion. Dobbs returned the abortion issue to the individual states. As a result, the law in this area is unclear. Some states have moved to outlaw abortion entirely or restrict it well before the fetus or unborn child's viability. Other states have adopted privacy protections similar to the court's prior holding in Roe v. Wade. There are challenges pending in states over abortion law changes.

The issue of fathers' rights regarding a fetus or unborn child will likely arise in states who have enacted further restrictions on abortion. The Dobbs decision may also raise the question of parents' rights regarding assisted reproductive technology. If there is no clear federal constitutional privacy interest in pregnancy decisions, some states may seek to prohibit the use of such technology to produce multiple fertilized eggs for future implantation and pregnancy. This may affect both the rights of fathers and mothers in terms of storage and disposal.

Consult With a Fathers' Rights Attorney

Establishing and exercising your rights as a father can be challenging and worthwhile. Hiring a lawyer might be one of the most important decisions you've ever made.

An attorney can help provide legal advice. They can help you with court paperwork. A lawyer can help you collect evidence, draft legal documents, and advocate for your legal rights before a family court judge. Consider speaking to a fathers' rights attorney in your area.