While each state establishes specific laws regarding the rights of parents, the general principle in American law today is that the biological parents of a child have almost incontrovertible rights. A father has rights to his child even when he is separated from his wife, and few courts will be willing to abridge those rights except when the child’s welfare may be in question.
Legal Separation Definition
Legal separation is a court-ordered and court-supervised temporary or trial dissolution of a marriage. In a legal separation, the state recognizes that the husband and wife are still legally married but are living apart. This arrangement usually continues for several months to as much as a year or two before reconciliation, or a full divorce, happens. In the meantime, children of the marriage have to be cared for under some arrangements. Legal separation allows the court to determine what those arrangements will be—chiefly for the welfare of the child.
Up until the 1970s, men often faced discrimination when it came to custody and other legal questions regarding children. Fathers, separated from their children, found themselves in legal limbo and mothers held the upper hand most of the time. After reforms took place, however, the court shifted to a more equitable basis of treatment for fathers including during legal separation periods. In most cases, and in most states, fathers can now expect to receive rights equal to mothers in family law questions, without or with less of a gender bias.
Theory of Equal Responsibility
Separated fathers generally are required to continue to provide for the child’s support during the separation, just as if the couple were not separated, and in equal measure to the mother if their incomes are equal. Separated fathers usually are seen as being equal with their wives in all things, including equally able to care for the child. Courts and state welfare agencies can codify this theory of equality or abrogate it based, for example, on a poor agency "fitness" inquiry. Unless a separated father is poorly equipped to support or care for the child, he can usually expect equal consideration under the law.
Importance of Legal Status And Counsel
All couples who are separating should seek a court-supervised legal separation for many reasons, but a father should especially seek formal separation to guard his parental rights. Even if the custody arrangement is agreeable at the time of separation, don't just "split up." Fathers should seek legal counsel and legal status for the separation. After all, things could change dramatically during a separation. The father’s lawyer, and the court, will ensure that his rights are maintained regardless of changes in the mother’s attitude or status.
In most family courts, a father in legal separations has the following rights: the right to seek live-in custody, the right to regular visitation if he does not have live-in custody, the right to overnight unsupervised visitations and the right to participate in any medical decisions, school activities or other important decisions or events. If the couple does not legally separate, the court cannot enforce any of these rights.
In most states, neither parent involved in a legal separation are permitted to leave the state or the country with the child without the written permission of the other parent, nor to move the child to another state or far away from their home community. If the court has not granted legal separation, these potential protections against child abduction are absent.
- "Fathers' Rights Activism and Law Reform in Comparative Perspective"; Richard Collier and Sally Sheldon; 2006
- “Lagging Behind the Times: Parenthood, Custody and Gender Bias in the Family Court”; Cynthia A. McNeely; 1998
- “Rights, Gender and Family Law”; Julie Wallbank, Shazia Choudhry, Jonathan Herring; 2010