The Rights of the Never-Married Father
Always a sore spot for many fathers who
have produced children while not married to the mothers of their children
especially when they find out that they have no rights to the child. I am
going to break down the reasoning for the way the law is written, the
consequences of the situation, and the steps a never-married father must take
to establish a right for the future.
I am going to use the language contained within Ohio law but the reality is that virtually the same language is used and processes exist in every state of the Nation.
3109.042 Custody rights of unmarried mother.
· (A) An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation.
· (B) Notwithstanding division (A) of this section, an unmarried female who has been convicted of or pleaded guilty to rape or sexual battery and has been declared under section 3109.501 of the Revised Code to be the parent of a child born as a result of rape or sexual battery shall not be a residential parent and legal custodian of that child
Reading this will bring the harsh reality to a young man that he has no rights automatically when he is not married to the mother. There are several reasons why laws like this must exist and despite the calls by many that these laws be changed or stricken from the books, that is a very bad idea.
Without this law on the books, every child borne to an unwed mother would automatically become a ward of the state at birth. Although the witnessing of the birth would seem like the logical protection of the rights of the mother, the removal of these laws would bestow no rights to either parent upon birth. Without that, the State would have to take over under Pans Patriae and act as the “protector” of the child in all matters such as health and safety.
For a state, this would become a very expensive process because that would make them solely responsible for any financial burdens associated with the birth and raising of the child until the natural mother goes through the legal process of establishing her rights as a parent. That could take months of legal wrangling and unnecessary legal battles that would effectively bankrupt a state through a protracted and slow legal system that has now become even more overcrowded. All the while that state is footing the bill for food, health care, housing, and everyday care of a newborn child.
This would be massively expensive and a logistical nightmare for all involved and frankly far from in the Best Interests of any child to start life as a ward of the State when critical bonds are normally formed between a child and parent.
The second most important factor is that at this point in a child’s life, there is no proof of paternity for the father. As a father who witnessed the birth of his son, I can state that it is pretty hard to deny that a woman gave birth to a child especially with the existence of so many witnesses to the fact that the child “came” out of her body. Sorry guys, this is the way God intended things to be and until a male undergoes major transformations in their body mechanics, that will never change.
While some claim that this section of law should be removed, we were asked by the Ohio Commission on Fatherhood what the legal effect would be if the section were removed. This is what we told them and it explains the total effect for all involved and for the State of Ohio. See here.
What is required of the never-married father?
The process for establishing rights for a never-married father is very different from the establishment of rights for a married father. The presumption under the law is that a child born during a marriage is presumed to be a product of that marriage.
While many are under misguided notions that doing certain things such as signing a birth certificate or paying child support gives a never-married father has automatically established his rights, these are far from the truth.
In getting custody both the married and the never-married must go through the same process and the same law used to determine a custody or visitation order is the same for both.
The signing of the Birth Certificate
Congratulations you have now signed a piece of paper that establishes no legal right to the custody of the child. Your signature does not prove that you are the father and only establishes that you placed your name on the legal notice that the child was born alive. Giving the child your surname means nothing legally as that also proves nothing as to establish that you genetically are the father of the child.
Putative Father Registry
While this is often thrust in the face of an alleged father at the hospital with tails told of the protection of his rights, which is still not the legal barrier to establishing a parent-child relationship. The purpose of this registry is to establish a notification should the natural mother decide that she wishes to give the child up for adoption.
If a father suspects that a mother is going to give a child up for adoption I do recommend this as a protection but it does not mean that you will automatically become the legal custodian of the child should the mother decide to give up her rights. It means that should she take this action the state is supposed to make every effort to contact you first before proceeding with that adoption. Sadly, as some have found out, the counties make little effort to track down a father in these situations and often he is not found until the process is well underway or entirely too late to stop.
We have additional information on the Putative Father registry that you can read here.
Acknowledgment of paternity
In doing this you are acknowledging that you are the father of the child that was born. You are taking full responsibility for the cost of raising that child. It does not legally establish any custodial rights to the child or visitation rights with the child.
While will eliminate the step of doing DNA testing in the proper establishment of rights it does open you up to the establishment of an immediate child support order.
Establishing through the Courts
As expensive as this may sound, it can be done without an attorney if you are confident enough to represent yourself. If not we do recommend that you at least speak with one to get further insight into what all this entails.
Typical filings involved in this are:
- A motion to establish paternity – This motion will ask the courts for a DNA test to prove that you are the father. This will legally establish that you are the father of the child.
- A motion to establish visitation or custodial rights – This will establish your legal rights as to when you can or cannot see the child involved and just what your rights as a parent are in the decision-making processes. There is no guarantee that you will be given equal legal and physical custody of the child as that will be a decision that has to be made through the courts in the same manner as is done for divorcing parenting. It is also recommended that you submit some sort of a “plan” that suggests how you want the decision-making of future issues handled.
- You will have to provide financial information about yourself for this case.
Are there standard forms?
Yes, there are standard forms for this and they are located on the Ohio Supreme Court website.
For the never married that have never established themselves the proper forms are here.
Protect yourself
As you can see this is a complicated issue. One night of carnal fun can turn into a lifetime of legal nightmares.
This
can often be avoided by the simple common sense of using a condom. We hear it
all the time yet hormones often take over and the consequences can be expensive
for an unmarried man and those expenses will continue for the next 18 years of
the child’s life even if you are never involved with her again. When I
say expensive I do mean possible additional court appearances and child support
which may be as much as 65% of your gross pay per week.
Ray R. Lautenschlager
National Legislative Director
Ohio Family Rights
