unmarried fathers rights

In recent decades the number of births of children to unmarried parents has led to an increased focus on the fathers of these children. Referred to as alleged, presumed, reputed, or putative fathers, many of them seek recognition of their legal rights and expanded roles in raising their children.

Constitutional Rights

Historically, unmarried fathers have had fewer rights with regard to their children than either unwed mothers or married parents. Over the past several decades, unmarried fathers have challenged the termination of their parental rights under The Rights of Unmarried Fathers, the Fourteenth Amendment, in cases in which birth mothers relinquished their children for adoption. In a series of cases involving unmarried fathers, the U.S. Supreme Court affirmed the constitutional protection of such a father’s parental rights when he has established a substantial relationship with his child.

The court found that the existence of a biological link between a child and an unmarried father gives the father the opportunity to establish a substantial relationship, which it defined as the father’s commitment to the responsibilities of parenthood, as demonstrated by being involved or attempting to be involved in the child’s upbringing.

Nevertheless, States have almost complete discretion to determine the rights of unmarried fathers whose legal relationship to a child has not been established for the purposes of termination of parental rights or adoption proceedings.

States’ Definitions of ‘Father’

There is no standard definition for the word ‘father’ in statutes across the States. Approximately five States, the District of Columbia, American Samoa, and the U.S. Virgin Islands provide no definitions for the term at all. However, most States have definitions for the various categories of unmarried fathers. The term ‘putative father’ is defined in statute in 12 States.

With some variation in language, the term ‘putative father’ generally means a man whose legal relationship to a child has not been established but who is alleged to be or claims that he may be the biological father of a child who is born to a woman to whom he is not married at the time of the child’s birth.

In approximately 22 States and the Northern Mariana Islands, a man may be presumed to be the father of a child in any of the following circumstances:

  • He and the child’s mother are or were married to each other, and the child is born during the marriage or within 300 days after the marriage ended.
  • Before the birth of the child, he and the child’s mother attempted to marry, and the marriage is or could be declared invalid, and the child is born during the marriage or within 300 days after the marriage is terminated.
  • With his consent, he is listed as the father on the child’s birth certificate.
  • He has acknowledged his paternity in writing.
  • He is obligated to support the child, either by voluntary agreement or court order.
  • While the child is a minor, he has resided with the child and openly claimed the child as his biological child.

Paternity Registries

All States have provisions for a father to voluntarily acknowledge paternity or the possibility of paternity of a child born outside of marriage.

At the State level, approximately 24 States have established paternity registries for this purpose. In 11 States, the District of Columbia, and the Virgin Islands, there are provisions for voluntary acknowledgment of paternity through forms that are filed with social services departments, registrars of vital statistics, or other similar entities.

Acknowledgment of paternity or registration with a putative father registry ensures certain rights for an unmarried father, such as the right to receive notice of court proceedings regarding the child, petitions for adoption, and actions to terminate parental rights. In 10 States with putative father registries, filing with the registry is the sole means for establishing this right of notice. An acknowledged father may also seek visitation with the child and usually will be required to provide financial support to the child.

Alternate Means to Establish Paternity

In 21 States and the Northern Mariana Islands, a person may claim paternity to a child by filing an acknowledgment or affidavit of paternity with a court.

Paternity of a child born outside of marriage may also be established by court order in all States.

States differ in the information they need for registration or acknowledgment of paternity; however, the following data elements are the federally mandated, minimum requirements of a paternity acknowledgment affidavit:

  • Current full name, address, Social Security number, and date of birth of the father and the mother
  • The child’s current full name, date of birth, and place of birth
  • Signature lines for the mother and the father
  • Signature lines for witnesses or notaries

The acknowledgment form also must include a statement to be signed by both parents indicating they understand that signing the affidavit of paternity is voluntary and that they understand what their rights, responsibilities, alternatives, and consequences are. The form also must include a brief explanation of the legal significance of signing a voluntary paternity affidavit and a statement that both parents have 60 days to rescind the paternity acknowledgment affidavit. States may also require additional optional information based on State statutes or regulations.

Revocation of Claim

Approximately 44 States, the District of Columbia, and the U.S. Virgin Islands make provisions in their statutes that allow putative fathers to revoke or rescind a notice of intent to claim paternity. Of these States, approximately 15 allow revocation at any time. Revocation is effective only after the child’s birth in Arkansas and Iowa, and Florida allows revocation of a registration prior to the child’s birth only. Approximately 28 States, the District of Columbia, and the Virgin Islands limit the right of rescission to 60 days after the paternity claim is submitted or prior to a court proceeding to establish paternity, whichever occurs first. In 19 States and the Virgin Islands, a claim of paternity may not be revoked after the 60-day period except by court action on the basis of fraud, duress, or material mistake of fact.

Most States will accept a written, notarized statement for rescission. Seven States, however, require a court proceeding for revocation of a claim. Access to information maintained in registries also varies from State to State. Many jurisdictions permit certain persons access to registry records. In general, these are people with a direct interest in a case. Typically, persons entitled to access include birth mothers, courts, attorneys, licensed adoption agencies, prospective adoptive parents, State departments of social services, State offices of child support enforcement, registries of States, or any other person upon a court order for good cause.

This publication is a product of the State Statutes Series prepared by Child Welfare Information Gateway in cooperation with the National Center for Adoption Law & Policy. While every attempt has been made to be complete, additional information on these topics may be in other sections of a State’s code as well as agency regulations, case law, and informal practices and procedures.

Child Welfare Information Gateway. (2010). The rights of unmarried fathers. Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau.Access to Information http://www.childwelfare.gov

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