Unwed fathers can face a difficult legal path when it comes to the custody of their children. In addition to the potential problem of establishing paternity, unwed fathers face the perception that mothers are more suited to raising a child than they are. However, the law provides unwed fathers the same custody rights as married ones, and courts have a duty to make custody decisions that are best for the child.
Basis
The rights of an unwed father to have custody over a child rests on protections provided in the Constitution. The Supreme Court has ruled in cases like Santosky v. Kramer that the right of a parent to care and have custody over his child is a fundamental liberty interest protected by the due process clause of the Fourteenth Amendment. This right cannot be denied a father in the absence of significant and extraordinary circumstances.
History
The legal status of an unwed father's right to custody has gone through several changes over the years. For much of the last century, mothers were given presumptive custody rights over a father based on the "tender years doctrine," a legal principle based on the idea that a mother is better suited to raise a child. Since then, courts have replaced the tender years doctrine the "bests interests" test. This test assumes that the involvement of both parents in the child's life is in the child's best interests.
Types
Courts differentiate between two kinds of custody: legal and physical. Legal custody is the right to make decisions about how a child is raised, while physical custody is the right to have physical control over the child. Typically, courts award custody to both the father and the mother jointly, even if the parties are unmarried or divorced. This usually happens in the form of a parenting plan that details the custody rights and obligations of each party.
Requirements
While married fathers are typically presumed to be the child's father by law, unwed fathers must prove their fatherhood by establishing paternity, the legal recognition that a man is a child's father. Usually this is done by both parents signing an acknowledgment that the man is the child's father. If custody is disputed, scientific testing can be ordered by the court to conclusively determine who a child's father is.
Warnings
State laws on the procedures and details involved in custody and paternity rights can differ widely. Unwed fathers face a wide range of legal issues that are dependent upon specific statutes and case law. Your rights can hinge on finding qualified counsel, so always take the time to find an attorney in your area if you have any custody concerns.
