Father’s Rights
What Are a Father’s Rights in Child Custody?
There was a time, not too long ago, when courts gave priority to mothers in custody disputes. This was especially true for children under the age of five. Legally, a biological father has as much right to seek custody as a mother does.[1]
The official stance of the court, regardless of the state, is that custody arrangements prioritize the best interests of the child. If the father is as fit as the mother, a judge is likely to grant joint custody. If the father is more fit, they may grant sole custody to him.
If both parents can provide for the child, it’s in the best interest of that child for them to agree on joint custody. However, if both parents seek sole custody and both are equally fit, the court may favor the mother.
What Does the Law Say About Father’s Rights to Consent to an Adoption?
While adoption procedures and decisions largely fall under state jurisdiction, the U.S. Constitution and Supreme Court decisions impact father’s right to consent or contest:[2]
- The Due Process Clause of the Fourteenth Amendment states that natural parents have a right to the custody, care, and management of their children. This has been used to ensure states cannot terminate parental rights without good reason, and it makes no distinction between mothers and fathers.
- The Equal Protection Clause of the same amendment has been cited by the U.S. Supreme Court to state that there is no distinction between an unwed mother and father when consenting to a child’s adoption. It ruled a state law differentiating between mothers and fathers as unconstitutional.
These protect a father’s rights when it comes to adoption. A mother cannot generally put a child up for adoption without the father’s consent. However, in practice, it can be more complicated, and many states have statutes that require a married father’s consent but do not address unwed fathers.
Some states have addressed the issue of the rights of unwed fathers by establishing registries. The unwed father can register their information. This is supposed to ensure they get information about any adoption proceedings.
What Can I Do to Seek Custody or Visitation?
Unwed fathers without custody of their children can assert their rights for visitation or even to request partial custody. They must go through a legal process, which is best done with an experienced lawyer:
- Establish paternity
Before you can seek a right to visit with or gain custody of a child, you must show you are the father. The process varies by state. In most cases, if the mother agrees, you can both sign and file an acknowledgement of paternity with the state. If the mother disputes your paternity, you may need to take a DNA test and get a court order. - Negotiate an agreement
The next step is to negotiate an agreement for custody or visitation with the mother or the guardian with custody of your child. It’s best for the child if all adults involved can agree amicably. File the agreement with the court to get a judge’s approval and to make it official. - Seek a court order
If you cannot come to an agreement, you can seek a court order for custody or visitation. Both parents or guardians will go to a court hearing, and the judge will decide on an arrangement. If the mother has sole custody, it is unlikely the father will win custody, but a judge will likely give him visitation rights or partial custody. - Modify a custody agreement
Fathers also have a right to petition a court for a modification. The burden is on you to show there is a change significant enough to warrant it. The court generally favors stability in the child’s living arrangement and custody.
As a father seeking sole custody, you have an uphill battle. You must show that the mother is unfit even to have joint custody. Factors a court will consider include abuse or neglect, abandonment, substance abuse, debilitating mental illness, or being unwilling to provide a child with basic care and necessities.
Do Fathers Have a Right to Parental Leave?
Parental leave laws vary by state. Many workers, male and female, are covered by the Family and Medical Leave Act. This law allows for up to 12 weeks of unpaid leave for family medical situations, including the birth of a child.
To qualify under the law, you must have worked for the company (with at least 50 employees) or a government agency for at least 12 months. Many men do not qualify, and those who do and choose to take paternity leave do not get paid.
A few states offer paid leave, including California, New Jersey, Rhode Island, and Washington, D.C. The vast majority of working fathers in the U.S. do not get paid leave for the birth of a child. A shift is occurring, however, and more companies voluntarily offer paid paternity leave.
Father’s rights are increasingly addressed in family courts. While mothers once had an unquestionable advantage in custody arrangements, judges and state laws recognize that fathers have an equal right to the care of their child. If you have a custody, adoption, or visitation dispute, contact a father’s rights lawyer for guidance.