The increase in the rate of out-of-wedlock births and divorced parents in the United States over the last several decades has made paternity rights more important than ever before. The development of paternity rights is a legal response to the need for children to maintain contact with their fathers. Although paternity laws vary somewhat from state to state, basic principles are fairly consistent in every jurisdiction.
Establishing Paternity
Paternity rights are generally granted to the biological father, although exceptions exist in certain cases such as adoption. Although state laws vary, biological paternity can be legally established in at least three ways. The father named on the child's birth certificate is presumed to be the biological father until proven otherwise. Likewise, the man who was married to the mother at the time of the child's birth is presumed to be the child's father until proven otherwise. If the father listed on the birth certificate is different from the mother's husband at the time of the child's birth, or if a third party claims paternity, the claimant can obtain a court order granting him paternity rights if paternity is established through a paternity test, typically based on a comparison of DNA samples provided by the father and the child.
Custody
In the case of divorce, separation and unmarried parents, the operative principle in child custody proceedings is the best interests of the child. Many states presume that it is in the interest of preschool children to live with their mothers unless proven otherwise. Joint custody is increasingly popular, allowing the father equal say in making important decisions about the child's life--such as education, religious instruction and medical care--even if the child does not live with the father. Joint custody typically allows liberal visitation rights to the father if the child lives with the mother.
Paternity Leave
The Family Medical Leave Act allows fathers up to 12 weeks of paternity leave after the birth of a child. Although employers are not obligated to pay salary during this time, they may not fire the father for taking paternity leave as long as the father has worked for the employer for at least an average of 25 hours per week for at least 50 weeks during the year preceding the child's birth. These 12 weeks may be taken all at once or split into several "mini-leaves" during the child's first year of life.
Legal Trends
Family law has become progressively more favorable to fathers since the 1970s. In the case of Stanley v. Illinois, the U.S. Supreme Court ruled that unwed, divorced and separated biological fathers should receive substantial paternity rights if they provide support and take and active role in raising the child. Meanwhile, enforcement of child support obligations neglected by "deadbeat dads" has been strengthened.
Considerations
Modern paternity rights have been criticized for not allowing paid paternity leave, because paternity leave is not practical when the father is the sole family breadwinner or when the child is supported by a double income provided by two working parents. Kate Holbrook reported in the magazine "Personnel Today" that, as of 2009, new regulations were pending that would allow a mother to pass some of her maternity leave and pay to the father.
