Since the early 1970s, laws regarding biological parents have been shifting. Parents of out-of-wedlock children are treated the same as parents who have got divorced. The biological parents must share in raising the children, the children must be financially supported, and visitation and custody issues must be resolved. Fathers and mothers are treated equally under the law.
According to the Child Welfare Information Gateway, when a putative or presumed father has a "substantial relationship with his child," the Supreme Court has affirmed his parental rights. The court defined this relationship as a biological link, involvement in the upbringing of the child, and financial support.
Drafted by the National Conference of Commissioners (NCS) on Uniform State Laws in 1973, the Uniform Parentage Act (UPA) has not been enacted in every state. It's not been passed unaltered in any state. The goal of the Commissioners was "to remove the established differences in status between legitimate and illegitimate children and provide equal rights for all children regardless of the marital status of their parents."
With out-of-wedlock births, there are instances where the biological father is not present at the birth. Often when this occurs, the mother will give the child her last name and leave the father's name off. Other times, she may list the man she believes to be the father.
If the father comes forward voluntarily or is located and forced to take a DNA test, the birth certificate must be amended. In instances where the man believed to be the birth father is listed on the birth certificate, his name may need to be removed as a consequence of DNA testing.
Making modifications to a birth certificate requires a court order from probate court.
Paternity and Support
Both biological parents, regardless of whether they are married, must support the child. If the father admits paternity, it is recommended that the mother obtain his admission in writing in case he later changes his mind. If the presumed biological father does not willingly admit paternity, the mother can file a paternity suit. Under the UPA, the court can order a DNA test of both the child and the father without starting the paternity litigation. A "reasonable probability of sexual contact between the possible father and the mother is sufficient to order the test. Refusing to take a DNA test can result in automatically being named a parent.
If the paternity suit is successful, the court will order the father to pay child support. The guidelines for child support are determined by individual states. He may also be required to pay for the mother's medical expenses relating to the pregnancy. Failure to pay child support may lead to wage garnishment, seizure of property or bank accounts, or even jail.
If the mother denies the paternity, the presumed father can file an affidavit of paternity with the court. The acknowledgment ensures the father he will receive notices from the court regarding hearings, adoption petitions, etc.
A biological father must be notified and give his consent prior to his child being placed in an adoptive home. If he is not notified, he can contest the adoption within the time limit set by the state. It's typically a six-month window in which he must act.
If a biological parent refuses to permit an adoption of any kind, including by a new spouse, it cannot proceed. A court order declaring the objecting parent as unfit before the adoption could proceed. State laws vary as to the definition of an unsuitable parent. Normally, any parent who fails to contribute financial support, has been abusive or neglectful, or has not maintained regular contact with the child is considered unfit.
The days when mothers automatically receive custody are gone. Between the 1960s and 1980s, state laws shifted making each parent equal.
If the parents cannot agree on the issue of custody in the case of a divorce, a judge will determine what is in the best interest of the child. Each parent will have to argue his case as to why he should receive custody over the other.
According to the Council of State Governments (CSG), amendments and revisions made to the Uniform Parentage Act in 1988, 2000 and 2002 strengthened the laws requiring the identification of the father so that child support can be ordered, added DNA testing as the way to determine parentage, and addressed children who were conceived by an artificial insemination, donor or carried by a surrogate.
- Child Welfare Information Gateway: The Rights of Presumed Fathers; October 2007
- "Family Legal Guide"; American Bar Association; 1994
- The Stork: Info You Should Know, Birth Fathers' Rights; Attorney Marc Widelock; 2003
- Lawyers: The Uniform Parentage Act of 2002; LexisNexis; 2010
- Council of State Governments (CSG): Uniform Parentage Act Statement; 1973