How To Gain Parental Rights as a Father When Not Married

Often, when unmarried fathers attempt to assert their parental rights, they receive a rude awakening when they discover they are not presumed to be the biological father. The benefit of presumptive paternity is only given to men married to the biological mother. Even if named on the child's birth certificate, an unmarried father must show paternity before he is granted custody or visitation rights.

Putative Father - Definition

Some fathers may claim rights if they are deemed the putative father, even before paternity is legally established. The law defines a putative father as a man who may be the biological father of a child whose mother he was not married to on or before the child's birth and who has not legally established paternity. A putative father retains the right to receive notice before the mother enters into any adoption procedures or any other proceedings that will terminate his parental rights. However, many states require that the putative father register or in some way legally acknowledge his paternity within a statutory time period. If he does not, his right to notice is nullified.

Establishing Paternity

Just having his name on a child's birth certificate does not establish paternity unless the father is married to the mother at the time of the birth. It is presumed that a married man is the father when at the time a child is born. An unmarried father is not granted this presumption. An unmarried father with proven paternity, however, is legally granted more rights than a putative father.

Establishing paternity provides many benefits including:

  • Removing any ambiguity of a child's parentage
  • Giving the child a full sense of identity
  • Giving the mother legal rights to pursue child support
  • Providing other paternal benefits to the child through the father's health and life insurance, social security if the father becomes deceased, inheritance rights, and any veteran benefits
  • Providing the child with a complete medical history

If the mother was not married to the father at the time of conception or birth, a father can do the following to establish paternity:

  • Hospital Affidavit - An unmarried father can complete an affidavit provided by the State Department of Health, but must do so within three days of the child's birth date. Both mother and father must sign the affidavit.
  • Administrative Affidavit - Alternatively, an unmarried father has until a child turns 20 to file an administrative affidavit provided by a local health department. The filer has 60 days in which to withdraw the affidavit without explanation. After 60 days, the filer must provide an adequate reason to set aside the affidavit.
  • Court determination - A father can go to court and file a paternity test to request a judicial determination or request that a genetic test be administered to prove paternity.

After Paternity is Established

In addition to the aforementioned benefits of establishing paternity, the father gains the legal rights to visit his child. Under some circumstances, he may even be granted partial custody. In the case where the mother is proven unfit or unexpectedly dies while the child is still a statutory minor, the unmarried father has the right to petition for full custody. These rights carry more legal weight in a court than those of a putative father, especially in a case where any matrilineal relatives attempt to sue for custody after the mother's death.

Find an Attorney

If you are an unmarried father who wants to gain parental rights, you must first establish paternity. Once you establish paternity, you are awarded the benefits of visitation and possible custody. Conversely, you also receive the responsibility of providing for your child(ren). Discuss your case with an attorney experienced with family law in your state, especially as it pertains to parental rights.

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