Category Archives: Father’s Rights

As unwed parenthood rises, what are fathers’ rights?

Will unwed parenthood ever be the norm? It’s certainly become more prevalent. Nearly 48 percent of first babies in the United States now are being born to mothers who aren’t married. But look a little closer at the trend for a surprising twist – more than half of new single moms are living with their babies’ fathers.

Let’s leave it to the sociologists to figure out why this is happening. As far as family law is concerned, though, I’d have to say this: If the partnership between unwed parents breaks up, the unmarried father will need to take some steps that a married dad who is getting a divorce wouldn’t have to.

In family law, there is the concept of the “legal father” – the father who has rights and responsibilities to the child, including timesharing (the term in Florida for shared custody and visitation after a divorce) and the duty to provide financial support.

When a pregnant woman is married and gives birth, her husband is automatically the legal father and his name is placed on the baby’s birth certificate without question.

Things can get a little more complicated when a new mother isn’t married. The father’s name will be included on the birth certificate only when both parents agree and sign affidavits acknowledging paternity. This may be the simplest way to declare the baby’s legal father and ensure the unwed father has rights – and responsibilities – to the child, although the dad still will have to file a petition in court to establish an enforceable visitation schedule if the parents split up, which I’ll talk about below.

Here’s another scenario: Let’s say the biological father doesn’t sign the birth certificate, or isn’t even around when the unwed mother gives birth. It’s likely that he will still bear the responsibility to provide child support, which can be enforced by the state, when the mother seeks child support through the Florida Department of Revenue.

If she applies for welfare benefits from the state, such as Medicaid, a paternity claim and demand for child support will happen automatically. The Department of Revenue has the authority to order genetic testing, which can show paternity with 99 percent probability through a simple mouth swab. Once paternity is proven, there are guidelines that will determine the amount of child support the father owes and the state will enforce payment.

The state’s interest is for fathers to support their children, and thus lessen the burden on taxpayers in providing welfare benefits.

This way of establishing paternity and child support won’t include anything about timesharing or parenting plan agreements. It is strictly about making sure the father pays up. The unwed mother still will be the natural custodian with complete say about the child’s upbringing, including time spent with the father.

There is a way, however, for an unwed father to have the same rights concerning his children that married fathers have when divorcing. The unwed dad can file a petition in circuit court to establish parental responsibility and a timesharing schedule.  He and the mother will have to submit a parenting plan to the court, just like a divorcing couple would, that shows the amount of time to be spent with each parent, and other matters involving how their child will be raised.

Let me add here, however, that establishing the legal father, and therefore who has rights to the child, isn’t always simple or challengeable. For instance, when a father already is named on the birth certificate, such as when the mother is married, another man generally isn’t able to come in later and claim he is the biological and therefore legal father with all the rights that entails.

A man who hasn’t been involved with his child for years also will have a harder time if, say, he suddenly wants to have timesharing but the mother objects.

And there are other aspects of unwed fatherhood to be aware of in Florida, such as the state’s Putative Father Registry. To ensure the best outcome for unmarried dads, consultation and guidance from an experienced family attorney is highly recommended.

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