A record breaking legislation signed by Governor Snyder changed forever the way America has looked at parenting rights. The law simply stated that even though the woman is married to someone else parental rights of the biological father will be upheld as legal. The more archaic version of the law presumed the lawful husband to be the father of the child thereby allowing him complete decision making rights about the child’s welfare. The legislation also comes in the wake of the realization that almost 40% of children are born to unmarried mothers, thus raising the issue to a legitimate pitch on social grounds.
Understanding the role of a biological father
A biological father plays a role in the conception of the child but his rights vary according to the relation he is in with the mother. In case of him being married to the mother while she gives birth, then the biological father also becomes the legal parent. It’s in cases where there is an estrangement of sorts that the father is acknowledged as a ‘putative’ father. The rights of legal fathers and putative fathers over their children vary.
Rights Of A Biological Father
*Custody- While both the biological mother and father are deemed to be equal in the eyes of law over the physical and legal custody of the child, there has been a bias towards providing the custody rights to the mother. However, in the changing social scenario with fathers claiming their rights more vociferously and getting more involved with co-parenting the courts too have shown a shift in their decisions.
* Custody would mean playing an important role in residence, choice of religion, schooling, further education and health care.
*The Supreme Court of the United States however indicates that a biological father’s rights will be upheld provided he forms a ‘substantial’ relationship with the child. This aspect leaves a large void in terms of subjectivity of the term ‘substantial’ leaving it open to various interpretations and lesser objectivity. In some States, the institution of marriage supersedes the results of a paternity test.
In Kentucky, a very interesting paternity court case did not give the father of a child his paternity rights although DNA testing proved he was the father. The case is not uncommon in some US states where despite DNA tests, the biological Dad’s Paternity is Denied
* Physical Custody- If the biological father is not married to the mother the primary physical custody is provided to the mother unless there are extenuating circumstances such as lawful detention or harmful , neglectful and abusive behaviour for which she is thus, incapable of performing the joint role.
Apart from receiving complete or joint custody and parenting rights over the child, a biological father also has to support the child financially. If the father thinks that the amount set is too high he may appeal against it or even get it amended. In the case where a financial situation gets better there is space for further revision.
Moving or Relocating
A birth mother has to give the biological father a notice of 30-45 days in the case of relocating to another city, state or country. If the father is in absolute disagreement with the decision he has the right to appeal in court to stall the move.
In cases where the alleged father wishes to join his or her child in the USA, the situation may be more complex. First and foremost, until he is proven to be the biological father, he will not get any residential privileges, priority treatment for visa applications or US residency permits. Moreover, as per the USA Citizen and Immigration Services, the father may need to carry out an immigration test as proof of relationship if other supporting documentation (namely the birth certificate) are not considered worthy at a legal level. More about immigration testing in the USA and additional reading.
Clearly the rights of a biological father have found a more solid grounding in most states today. In case of a contravention of the biological father’s rights over custody rulings by the mother, the father has every right to have his rights protected. When a father is denied the right to paternity, he may appeal for contempt of court which may even result in a criminal case.
By and large the rights of a biological father are gaining more and more homogeneity across most states. It’s only when paternity is challenged by the mother that the biological father’s rights are to be proved via a paternity test after which complete rights are reinstated. If the rights are questioned through a legal affidavit or one in which she mentions the father to be someone else then the biological father has the right to compel the court to allow a DNA test to prove his paternity. Once the results come in, the court will grant paternity and the rights therein.
Although a father’s rights are the same as a mother’s the very nature of her biological connection with the child has allowed a rather lopsided approach to paternity. There is now a more definite move towards healthier reform in this field.