What are the rights of fathers who are not on the child’s birth certificate? What are the rights of fathers to attend pre-natal doctor appointments for the mother and unborn child? What are the rights of non-biological fathers? What are the rights of expectant fathers? These are all very typical questions that we encounter every day as Family Law Attorneys. The answers may surprise you.
The parental rights of fathers depend firstly upon marital status. If a man is married to a mother of a child, which child was born during the intact marriage, then the man is considered the legal father of the child, regardless of whether he is the biological father. In such instances the legal father has all of the rights to the child, and may attend all of the child’s medical appointments. This is true regardless of whether or not the man is named on the child’s birth certificate, although his non-appearance on the birth certificate becomes a proof problem if the mother is uncooperative.
Three terms are important to understand: “Legal Father” refers to a man who has been awarded that title by a court, or who is married to the mother at the time of the child’s birth. “Biological Father” is the term associated with the man whose sperm connected with the mother’s egg which resulted in the conception of the child. “Putative Father” is the term attached to a man who is seeking to establish himself as a legal father but before that status is determined by the court. A putative father can be converted to a legal father if he can properly establish his claim. But a legal father (the man married to the mother at the time of birth) can effectively block a putative father from becoming a legal father if he so desires. A legal father can be terminated as a legal father, but only voluntarily in the instance of an adoption, or involuntarily as the result of a finding that his rights should be terminated due to egregious abuse, neglect or abandonment. A biological father has no rights to the child whatsoever, except as determined by the mother, unless they are also the legal father. Biology alone confers no rights.
One must also consider the presence of the name of a father on the child’s birth certificate. When a child is born, a form is presented to the mother (typically presented by a Social Worker) for her signature and that of the person she indicates is the father. A signature by the father will result in that person being placed on the child’s birth certificate as the legal father. The mother may choose to name someone or not name someone at her discretion, so if she names nobody then there will be nobody initially listed as the legal father. That can often be amended subsequently, but until it is amended there is no certified proof of legal fatherhood. If she is married at the time of birth, but the father is not present to sign the document, then he will not be on the birth certificate but he can later have his name added and the birth certificate amended.
Consider the following scenarios:
1. A child is born to an unwed mother, and nobody is named as the father on the birth certificate.
a. In this scenario, the child does not have a legal father.
b. Children with that status were once known as “bastards”, but that term has morphed over the years. They are now known as “illegitimate”, but even that term is sometimes considered politically incorrect. A new term may soon come into vogue.
2. A child is born to an unwed mother, and X is named as the father on the birth certificate.
a. X is the legal father.
b. The child is legitimate, and maintains that status, regardless of any other legal changes that may occur in the future
3. A child is born to a wed mother, and her husband is named as the father on the birth certificate.
a. The husband is the legal father.
b. The child is legitimate
4. A child is born to a wed mother, and nobody is named as the father on the birth certificate.
a. The husband is the legal father, but proving this may be difficult without the mother’s cooperation.
b. The child is legitimate
5. A child is born to a wed mother, and X, who is not her husband, is named as the father on the birth certificate
a. X is the legal father, but the husband could potentially replace X as the legal father
b. The child is legitimate
The child’s legitimacy is a separate but related issue. One of the strongest presumptions in the law is that a child that is legitimate remains legitimate despite any change or purported change to the status of its legal father. The legal father is always a proper party for a paternity case, and they have the right to challenge a purported father’s right to establish paternity. So, in the instance where someone believing himself to be the biological father of a child born to a wed mother files an action for paternity, the mother’s husband, as legal father and a necessary party to the proceeding, has the right to contest the purported father’s right to bring the paternity action in the first place, or to even obtain a DNA test to establish biological filiation. One of the most effective ways for a woman to keep a man out of his biological child’s life is to marry someone while she is pregnant and to have that man assume legal fatherhood to effectively block bio-dad from even making an attempt at establishing paternity.
After conception but before a child is born, there is no issue of paternity, so questions about the purported-biological father’s right to attend antenatal (or prenatal) doctor appointments is not one that can be resolved by a court. In those instances the mother alone may determine whether or not anyone accompanies her to such appointments. No person has standing to request that a court require a woman to allow anyone else to attend doctor appointments. Of course, if the mother is a minor, or suffers from some mental incapacity, then a parent or guardian can intervene. Expectant fathers are similar, in that they have no rights to the as-yet-unborn child yet (due to the fact that the child is in utero). The mother is in complete control.
Non-biological fathers, such as step-fathers or legal strangers (perhaps close family friends), have no rights regarding the child that can be adjudicated by a court, unless they are the child’s legal father (such as in the instance where a wed mother delivers a child during the intact marriage but her husband is not the biological father). In such instances, the mother alone may determine what, if any, “rights” the non-biological person has (again, except if the man is the legal father b virtue of being her husband when the child is born).
Paternity is a potentially sticky matter, which matter is best cleared up quickly and soon after the child’s birth. Later establishment of paternity can be accomplished, but as noted above, only in some circumstances. A man thus has no automatic rights to a child whom he helped to conceive; his rights must be legally established. Mothers of children thus have rights that are not the equivalent of, and in fact are often superior to, the rights of a father. The fact that a child comes from the womb of the mother is enough to confer rights to her, but the fact of a man’s contribution of his sperm to the conception of that same child does not, in and of itself, confer any rights.