Since the early 20th century, the courts have typically favored the mother in divorce/separation cases. That trend has met great resistance in years recent to 2010. And while there has been some progress, father's rights groups contend that fathers still get a raw deal when it comes to custody. But fathers are parents too, and they have certain legal rights they should be aware of.
Constitutional Rights
Historically, putative (presumed) fathers have had fewer rights over their children than either unwed mothers or married parents, according to the Child Welfare Information Gateway. Recently, though, fathers have used the Fourteenth Amendment to challenge the termination of their parental rights when the birth mothers give their children up for adoption. The U.S. Supreme Court has upheld the constitutional protection of a presumed father's parental rights when he has a legitimate relationship with his child, which is the existence of a biological link between the child and father, and the father's commitment to the responsibilities of raising the child.
Custody
Mothers are granted primary custody in about 70 percent of contested child custody cases, so says the website Child Custody Tips and Resources. But according the the American Bar Association, mothers and fathers have an equal right right to custody, and fathers have a right to file with the courts for any type of legal and physical custody. Those include primary physical custody, joint/shared legal custody and full/sole physical and legal custody.
Visitation
If there is a court order or divorce decree establishing visitation, your ex must follow it. Your ex-wife cannot deny you visitation of your children either, for any reason, especially if there is a court order or a divorce decree that establishes visitation. If she does, you can file a petition with the court. The courts can enforce your visitation rights and/or your ex can be held in contempt of court. If the problem continues, you can file a motion for modified custody.
Child Support
If you are granted full custody, or if you have custody of your children more than your ex-wife, you may file with the court to receive child support. On the flip side, if you are required to pay child support, you also have the right to petition the court for a modification if there is a substantial change in income for either you or your ex-wife. Remember that your ex does not have the right to withhold your child from you due to lack of child support payment, nor can you deny payment if your ex withholds your child from you.
Military
If you are on active military duty or on deployment, you are protected from any default judgments by the Soldiers and Sailors Civil Relief Act. This law allows you to place any court proceedings on hold until you are able to appear in court.
Relocation
You also have rights if the military orders you to move to a different state. This can get complicated, however, and you should speak with an attorney.
For non-military fathers, your ex cannot just pick up and move with your kids. She must file a notice of relocation, which you have every right to object to in court. Conversely, if you would like to move, you certainly have the right to do so, but you must file a notice of relocation and your ex also has the right to object.
Unmarried Fathers/ Paternity
A man who is not married to a child's mother does not have any parental rights until he is able to establish paternity. That can be accomplished simply by acknowledging fatherhood or by a paternity test. You can acknowledge paternity by signing your name on the birth certificate or by consenting to the placement of your name on the birth certificate. In some states, you may have to submit a formal affidavit attesting to paternity. Your best bet is to check with an attorney.
References
- Child Welfare Information Gateway: The Rights of Presumed (Putative) Fathers
- Father's Parental Rights Law Center of Oklahoma: Relocation Issues
- Law Info: When Does an Unmarried Father Acquire Parental Rights?
- Expert Law: Fathers' Rights and Child Custody Law
- Child Custody: Child Custody Rights Explained
