Non-biological fathers, whether married to the mother of the child or not, may sometimes claim parental rights for children they have treated as biological children. Parental rights can include custody, visitation and rights to make decisions about the child. This group does not include adoptive fathers, who are legal parents, even though they are not biological fathers.
Historically, children have been given to their biological families to raise. The presumption that a child is better off with a biological parent than with a non-biological one still operates in most courts today. Non-biological fathers often have to struggle to establish parental rights.
Non-biological fathers fit into two categories. The first group is made up of men who think they are the biological fathers of children, but later paternity tests show that they are not. The second group is made up of men who know they are not biological fathers, such as men who marry or live with women who have children from previous relationships. Men in the first category have the best chance of establishing parental rights, but men in the second category may also get parental rights.
Courts will consider several factors in deciding if a legal parental relationship should be created. One is the age of the child. If the child is old enough to have developed a close relationship with the non-biological father, the courts will be less likely to separate them than if the child is too young to form a meaningful relationship. Another factor is how long the man has cared for the child and to what extent he acted like a parent. Courts will also consider whether the mother supports the child's relationship with a non-biological father.
In all child custody and visitation cases the court's primary concern is the welfare of the child. All the factors the courts consider come to the same thing: Will it be in the best interests of the child to have a parental relationship with the non-biological father? If the answer is yes, the non-biological father is likely to get at least some rights. If the answer is no, the non-biological father will not likely to succeed in getting any rights.
There is a common misconception that men who turn out not to be the biological father or who know they are not the biological father of a child will not win court cases to get parental rights. See the Resources for cases where non-biological fathers brought successful suits.