Paternity Rights: When Does Dad Get a Say?

paternity IMAGECustody disputes and arguments over parental rights are often complicated and difficult family law battles. The challenges may be particularly difficult when the child is born outside of a traditional marriage.

 Custody & Relocation

For example, a recent case involving a custody battle between Olympic Skier, Bode Miller and his short-lived girlfriend, Sara McKenna, has shed light on the rights of pregnant women to relocate outside of the jurisdiction of where the father is domiciled. After a short-term romance between Miller and McKenna, McKenna found out she was pregnant but had plans to relocate to New York to attend Columbia University. Miller, who lived in California, filed a declaration of his paternity and petitioned to establish custody rights in San Diego before the birth of their son.

 A family court referee in San Diego, California ruled that McKenna’s behavior was “reprehensible” and though she was not charged with “abducting” the child, the Court felt that McKenna had fled to New York because it was a more sympathetic jurisdiction. Miller, in a ruling by the San Diego Family Court, received physical custody of their son. This has led to an onslaught by women’s rights organizations attesting that this is an inherent restriction on pregnant women’s constitutionally-protected liberty, and a threat to pregnant women’s autonomy rights.

The First Department, New York’s Appellate Division, in a five-judge ruling on November 14, 2013, agreed and reversed the previous ruling made in San Diego’s family court, citing that the ruling was a violation of McKenna’s basic rights. It also concluded that New York had jurisdiction over the proceedings. The judge who ruled in San Diego, however, has not yet relinquished jurisdiction to New York, and a jurisdiction battle has ensued between the two states.

 Family Law Complexities

With many “non-traditional” households, it is becoming increasingly important for parents to legally protect themselves in the face of custody and parental disputes.  The Centers for Disease Control and Prevention (CDC) found that as of 2012, 40.7 percent of births were to unmarried women.

 There are also complexities for unmarried men who fathered children finding themselves on the losing end of a custody battle, sometimes paying for child support without visitation rights. There is a legal presumption that married men are the father to the child that is born to their spouse; unmarried men, however, do not receive the same benefit. Unmarried men must establish paternity, either at the time of the child’s birth by filling out the baby’s birth certificate or a Voluntary Acknowledgement of Parentage or Paternity (VAP). The VAP is a consent form that acknowledges that the unmarried man is the biological father to the child. Paternity testing may be necessary in the case of an extramarital affair or any confusion as to the identity of the father.

Once paternity has been established, the father may file a court order to receive custody or visitation rights. In Illinois, pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), a court, in order to evaluate the claim, must first determine if it has jurisdiction over the issue. As the Bode Miller case highlights, this may be difficult if the mother and child are not living in Illinois. Generally fathers, even if they have been legally-designated as the father, still must petition a court to establish custody rights, and are at a considerable disadvantage; unless the mother is unfit to raise the child, court judges presume that it is within the child’s best interest to remain with the mother. In most cases, legally-designated fathers should petition for joint or shared custody, or allow the mother to maintain sole custody with visitation rights. Ultimately, even if the father has not petitioned for custody or visitation rights from the Court, he is still required to pay child support. In Illinois, a percentage of the non-custodial parent’s income (based on the number of children shared) must be given to the custodial parent.

The extent of the rights of the unmarried man who has fathered a child depends largely on how assertive he is in petitioning for his custodial rights. Though Courts generally presume the mother to be the best custodial parent for the child, the legally designated father is not without his rights and should petition for them. Ideally, and in the best interest of the child, both the father and mother should discuss and come to an agreement about the type of family and living situation that they would like to have. This, however, does not always have an easy solution, especially when both parents do not have plans to remain geographically close to each other.

An experienced DuPage Child Custody Attorney may be able to provide the support necessary to come to an amendable custody and visitation arrangement between the two parties. Please contact us today for any further information about child custody and visitation rights.

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