In today’s legal system, if the father signs the birth certificate does he have rights?
Before 1979, a father who signed the birth certificate had almost no legal rights. Mothers had full legal custody. Fathers could see their children or have input on important matters, like where the children attended school, only if the mother allowed it.
James Cook and his 1979 joint custody petition in California changed all that. Cook opened the door for fathers who sign the birth certificate to have legal rights. But signing the birth certificate just creates an administrative parent/child relationship, mostly for child support purposes. Only a court can create a legal parent/child relationship.
Administrative relationships include not only a child support order but also limited inheritance rights. For example, fathers may designate children as their Social Security beneficiaries based on nothing more than a signature on a birth certificate.
However, as far as a court is concerned, in most states, a child born out of wedlock has no legal father, whether or not a man signs the birth certificate.
Well, that’s not quite accurate. Signing the birth certificate makes it easier to file a paternity action. Once a court decides paternity, legal rights are just around the corner. Without this preliminary finding, the court has no jurisdiction over custody, visitation, support, or any other such issue.
Additionally, a birth certificate can be changed in a few cases. Many states don’t finalize the birth certificate for about sixty days, during which time it’s subject to modification.
Legal Definition of a “Father”
Before we move further, we should precisely define this term. Usually, a father is the biological father of a child. However, this term could also mean an adopted father or the man a child calls “Dad,” regardless of that man’s legal or biological status.
A biological father is the man who impregnated the mother. A legal father proves he’s the biological father and:
- Pre-Conception Marriage: Generally, if a man was married to a mother for at least 300 consecutive days prior to birth, and the two continually cohabitation, the man is presumptively the legal father. “Continually” doesn’t mean every day, but it does mean almost every day.
- Legitimation: In most states, if a man (who isn’t necessarily the child’s biological father) wants a relationship with the child but doesn’t want to marry the mother, he may file an agreed or contested petition for legitimation. Judges often approve agreed petitions without holding hearings. A contested petition could involve a fight over paternity or the legal division of custody. We’ll explore these matters below.
- Acknowledgement: An acknowledgement of paternity, which is only available to biological fathers and only available in some states, creates an administrative parent/child relationship, as outlined above.
- Adoption: Legally, adopted and biological parents are identical. Generally, the mother marries a man who adopts the child (stepparent adoption). These cases are relatively straightforward. If the parents aren’t married, the process is more complex. In both instances, a court must terminate the biological father’s parental rights. Courts normally do so, if the proposed adoptive father has the capability, financially, emotionally, and otherwise, to care for the child.
Termination proceedings usually focus on the biological father. In most states, failure to support and have contact with the child for twelve consecutive months is grounds for termination. Alternatively, a biological father may voluntarily give up his parental rights, if a voluntary termination is in the child’s best interests. Normally, the mother must consent to termination.
If a mother thinks she knows the father’s identity and he refuses to step up, most states have a putative father registry. For most purposes, especially for child support purposes, listing in the putative father registry is the same thing as signing the birth certificate.
Involuntary and Voluntary Paternity
Court-ordered involuntary paternity determinations are quite rare. Occasionally, a doctor needs access to family history medical records or another loose end must be tied up. Usually, however, if the biological father doesn’t want to participate in the child’s life, an administrative relationship is sufficient.
Men file voluntary paternity actions because they voluntarily step forward. As mentioned, these legal actions often involve biological and legal questions.
Biological determination is a bit more complex in the wake of Dobbs vs. Jackson Womens’ Health, the 2022 case that overturned Roe vs. Wade. A DNA markup on an unborn child is a complex medical procedure.
However, a DNA markup on a live child is very straightforward. A saliva swab DNA test usually has one of two results, 0 percent or 99.99 percent.
Paternity determinations could be contested in some cases. Occasionally, mothers challenge a putative father’s paternity. More often, a father challenges paternity if he believes the child isn’t his, or the parents were going through a divorce when the child was conceived. These cases are quite complex, especially as time goes by. Once children bond with “fathers,” a termination proceeding is much less likely to succeed.
We mentioned termination and best interests above. Best interest factors vary in different states, but they usually include:
- Child’s short-term physical safety and long-term emotional development,
- Emotional bonds between children. Parents, extended family, and stepfamily (if any),
- Ability and willingness of a parent to care for a child’s special needs,
- Physical and mental health of parents and children,
- Child’s current environment (e.g. is Timmy getting good grades or bad grades while he lives with Mom),
- Any cultural, familial, and/or religious ties
- Minimizing disruptions to the child,
- Risks associated with alternative care (e.g. if Sally lives with Dad, her half-blind grandmother will most likely watch her),
- Domestic abuse or other criminal record of a parent,
- Parent’s and child’s preferences, and
- Recommendation of a social worker and/or attorney ad litem.
A professional’s recommendation is usually the most important factor on this list. Other major highlights include the child’s current environment and the child’s preference.
There’s an old saying that the devil you know is better than the devil you don’t know. In the paternity context, if the current informal parenting timeshare plan is flawed but workable, most judges want to keep it in place. This result minimize disruptions during a very unstable time.
Child preference rules vary in different states. Some have age cutoffs (e.g. a child mist be at least 14 to express a preference). Other states give judges almost absolute discretion in this area.
A word of caution. Judges and social workers can smell forced child preference designations. Parents who pressure children into making decisions usually fare very badly in court. This stance usually adversely affects their relationship with their children as well.
Incidentally, paternity may not be exclusively a biological matter. For example, if the man sexually assaulted the mother, paternity might not be in the child’s best interests. This instance may be one of those rare occasions when no father is better than a bad father.
A paternity determination means basically nothing unless a court expands on this determination. So, a voluntary or involuntary paternity order must also decide:
- Physical Custody: Most states have co-parenting laws that encourage both parents to actively participate in the child’s life. That requirement usually means a parenting time division somewhere in the neighborhood of 50-50.
- Financial Support: A few states are percentage-of-income states. A formula uses the non-custodial parent’s income and the number of children before the court to determine the child support obligation. Most states are income share states. The child support formula considers many other factors, such as the proportion of overnight visits.
- Legal Custody: This phrase simply means the ability to decide where the children go to school, what doctor they see, and other such matters, including the right to establish the child’s primary residence. “Joint” legal custody is a legal fiction, because the custodial parent always breaks 1-1 ties. Attorneys often add geographic restrictions and other such language to paternity orders, so fathers who sign birth certificates have additional rights.
Technically, paternity actions have no statute of limitations. However, the court loses jurisdiction over a child when s/he turns 21. At that point, a remaining issue, such as back child support, belongs to the child, not a parent.
Divorce and Father’s Rights
Until James Cook’s groundbreaking petition, most judges believed most fathers were TV remotes. A remote makes a TV easier to use, but the television functions without the remote. Likewise, according to most judges, fathers assisted mothers, and a family could function just fine without a father.
Modern co-parenting laws took joint custody a step further. As hinted above, as far as most judges are concerned, a bad father is better than no father, unless the father has a serious disability, like a serious drug problem, that makes him incapable of caring for a child, or the father is chronically abusive. In all other cases, the judge usually divides physical and legal custody after a divorce, according to the aforementioned factors.
Incidentally, we’ve repeatedly said that the judge makes decisions in situations like a father’s rights after he signs the birth certificate. Only a few paternity, divorce, and other family law disputes go to trial. Out-of-court settlements resolve most of these matters, but the judge has the final word. The judge must approve all such settlement agreements.
Sometimes, these agreements happen very early. That’s especially true in absentee spouse divorces. One spouse has physically and/or emotionally deserted the marriage. Generally, however, the spouses agree on broad, general principles. But they disagree on specific orders.
If the devil is in the details, social workers and attorney ad litems usually provide their input and professional skills.
Judges ask social workers to investigate child visitation and custody matters and make recommendations. These recommendations aren’t legally binding, but they’re very persuasive. An attorney ad litem is a court-appointed lawyer who stands up for the child’s best interests in court and gives a child a voice in the proceedings.
Legally, unless a stepfather adopts a child, the stepfather has no legal rights, at least in most cases. A few states have considered laws giving step parents visitation rights, especially if the state allows formal grandparent visitation. A few stray judges have also given stepfathers limited rights in these situations.
We didn’t mention child’s consent as an element of stepparent adoption. In many states, a child over 14 must consent, in writing, to a stepparent adoption.
After a stepfather adopts a child, he has the same legal rights and obligations as a biological parent. If he and the mother divorce, he has custody/visitation rights and he must pay child support. Adoption usually, but does not always, include a name change order.
We conclude with the rarest legal proceeding in this area. Paternity fraud is very rare, but it happens. Fraudulent father-child relationships cause widespread emotional and financial harm to everyone involved.
Usually within about a year, a father may file a petition to overturn a paternity determination. Frequently, the father couldn’t respond to the petition, usually because the father was in rehab or otherwise out of pocket, or the mother didn’t try very hard to locate the father.
This petition must usually cite new evidence that points to a different outcome, such as a DNA testthat conclusively shows the petitioner isn’t the child’s father. If this petition is successful, the mother usually must refund any child support money the petitioner paid. The order may or may not alter the legal parentage determination. An additional legal action might be necessary.