If the father is not on the birth certificate, can he fight for custody?
Most fathers ask what rights they have to their children if they are not listed on the birth certificate. If a couple is married, it is always presumed that the husband is the child’s father, but it is not so simple if a couple has a child while being unmarried. In short, if you are not on the birth certificate, you have no legal rights to the child.
There is a difference between being the biological father versus being the legal father. If you are not listed as the father on the birth certificate, you have no rights to custody, visitation, or paying child support.
To establish a father’s legal rights to their child, it is required that they establish paternity. Paternity is the Acknowledgement that you have fathered the child and will begin taking legal responsibility for the child. Legal responsibility for a child can come in many forms, such as health insurance, food, shelter, clothing, etc.
There are a few ways that paternity can be established. The first is voluntarily through what is known as an Acknowledgement of Paternity. This form is typically filled out at the hospital before the birth of the child. From there, that form must be sent off to the appropriate government office. This form can be presented to the father to remove all doubts regarding the child’s father and is typically filled out with both the mother and father being present at the hospital. If the parties are married once this is done, the father’s name can be added to the child’s birth certificate immediately. If the parties are not married, this form must be filled out before adding the father’s name to the birth certificate.
If the child’s mother is unsure about who the father of her child is, signing an Acknowledgement of Paternity voluntarily is not likely.
It is crucial to understand how beneficial it can be for both the child and the father in establishing paternity.
Starting with the child, the earlier paternity is established, the quicker a child will be eligible for health insurance coverage. This is most important during the beginning years of a child’s life when many doctor’s visits are required with the various preventative shots children must be administered. This can also help if your child falls to a sudden illness or is diagnosed with a chronic condition requiring ongoing medical treatment. Next, a father who has legal rights to their child will help establish the parent-child relationship between the two. Unfortunately, most children grow up in one-parent households, and having both parents in a child’s life is critical for their development.
On the other hand, establishing paternity early can help a father as well. For example, if a father who has had paternity established has had his rights to the child infringed on by the mother, he can seek enforcement of those rights. He can also seek enforcement of rights and duties that violate a court order. The father can also become a party to any child’s legal case if paternity is established and can even seek enforcement. It is also beneficial for the child’s health because the father’s family medical history will be available and warn of any medical issues the child can inherit.
If you have legally been determined to be the child’s father, you are known as an “adjudicated” father. This legal determination is made through the courts when a mother or an “alleged” father files suit to determine paternity. If you are the filing party of a paternity suit, you will carry the burden of establishing the paternity. This is done through DNA testing.
If you have voluntarily adjudicated paternity but begin to have doubts as to the paternity of the child, it is helpful to know that an acknowledgement is not permanent. However, there are time limitations on when an Acknowledgement can be rescinded. Rescission is the cancellation of the exposure. The parties will treat it as if the declaration were never signed in the first place, basically returning the parties to the position they were in before the exposure was signed. To do so, the party seeking rescission must do so within 60 days of the Acknowledgement being received by the Bureau of Vital Statistics.
If you are the legal father to a child and believe otherwise, you must file a lawsuit to counter the established legal relationship. However, there is a statute of limitations on when this action can be brought, and any suit filed after one year of the date the father had reason to believe he was not the child’s father will be barred. If the father presents a strong enough case, DNA testing will be ordered by the Judge. If DNA testing comes back negative, all rights and duties to the child will be terminated, leaving the mother to her means to establish paternity for the child.
Establishing paternity for a child as early as possible is greatly recommended. The harsh reality surrounding paternity can negatively affect a child as studies have shown what it is growing up without a father. If you have not established this paternity, it is crucial to know that you do not have legal rights to a child.
Fathers’ Rights – Birth Certificates & Parental Responsibility
There are many queries from fathers seeking advice on whether it is important to be named on their child’s birth certificate. Here are the primary questions we encounter. For more information on this topic, do not hesitate to contact our specialist team who will be happy to assist.
Could The Father Not Be Named On A Birth Certificate?
It is relatively common for the father not to be named on a child’s birth certificate. The reason behind such an omission may be a genuine mistake or oversight by the mother or the person completing the paperwork. Perhaps the parents’ relationship has broken down. In other instances, the father’s name may not be known or intentionally withheld by the mother.
Why Is It Important For The Father To Be Named On The Birth Certificate?
When named on the birth certificate, the father acquires rights in respect of the child. These rights are known as parental responsibility. If the father’s name is missing from the birth certificate, the father will not automatically acquire parental responsibility.
What Is Parental Responsibility?
A person with parental responsibility of a child must:
• Provide a home for the child;
• Protect and maintain the child;
• Discipline and impose boundaries for the child;
• Choose and provide for the child’s education and where the child goes to school;
• Agree to the child’s medical treatment and have access to the child’s medical records;
• Name the child and agree to any change of name;
• Look after the child’s property;
• Consent to taking the child abroad for holidays or extended stays;
• Determine the religion the child should be brought up in or promote exposure to more than one religion if there is a mixed cultural background.
As a result, parental responsibility is very important for a father. If there is a disagreement concerning one of the above issues between the mother and father, it is not permissible for either parent to make a unilateral decision without the agreement of the other parent. Legal remedies are available in the event on ongoing dispute.
What Are A Father’s Rights If Not On The Birth Certificate?
This will depend on whether the father and mother were married at the time of the child’s birth. The father will automatically acquire parental responsibility if he and the mother were married at the time of the child’s birth or have subsequently married each other.
It is more difficult for the father if he and the mother are not married at the time of the child’s birth and he is not named on the birth certificate. Simply, he would not automatically acquire parental responsibility. In the worst-case scenario, if the mother does not accept the father is indeed the father, he will encounter significant difficult attempting to invoke the rights that would be acquired by having parental responsibility.
Can A Father Put Himself On The Birth Certificate?
Yes, but the process will differ depending on whether the mother is in agreement with the father’s name being inserted and the birth certificate re-registered. Again, this is only relevant when the parents are unmarried.
If the mother is in agreement, the birth certificate can be re-registered directly with the General Register Office (GRO). The mother and father will need to provide some evidence to the GRO likely in the form of a statutory declaration from the mother that the father is the child’s father. Once completed, the father will duly acquire parental responsibility.
If the mother is not in agreement, the father will need to make an application to the court seeking a declaration of parentage. Most likely, this would involve the court ordering a DNA test being undertaken to establish paternity. Once established, the court will notify the GRO and the birth certificate will be re-registered including the father’s details. However, the father will not acquire parental responsibility in this manner.
Limitations of a Father Not Listed on a Birth Certificate
Just because the father is not listed on the birth certificate, does not mean that he cannot formally request custody or visitation. However, he will need to go through the process of establishing paternity to overcome the legal limitations on him.
Roughly 40% of babies in the US are born to mothers who are not married.
If the father is not present at the birth of the child, then his name will likely not appear on the birth certificate.
In the case that both parents are present at the birth, but the parents are not married, it is possible to have the father listed on the birth certificate. Most hospitals require an Acknowledgement of Paternity (AOP) form to be signed by both the mother and father before adding the father to the birth certificate in that case.
Just because the father is not listed on the birth certificate, does not mean that he cannot formally request custody or visitation. However, he will need to go through the process of establishing paternity.
Child Custody & Visitation Agreements
After paternity is confirmed, parents can begin negotiating a parenting agreement or parenting plan. A parenting agreement / plan will normally include details like which parent will have primary custody, specifics on the other parents visitation schedule, details on which parent will make decisions regarding the child’s education, health care, religion, and procedures for how potential changes to the arrangement will be handled.
The visitation rights of unmarried fathers will also depend on other factors like their relationship with the child, any drug or alcohol use, or any history of child of past child abuse, etc.
If both parties are unable to agree to a parenting agreement / plan the either parent may petition the court for child visitation or custody help. If the parents cannot agree on these arrangements, either one may ask the court to grant his or her request through a contested hearing.
Courts deciding on child custody and visitation issues will determine what is in the best interest of the child.
Courts assume that most children will benefit from having both parents involved in their care. If one parent can show evidence that the other parent would likely cause harm to the child, then the courts will take this into consideration when making a decision.
Who Is Awarded Child Custody When the Parents Are Unmarried?
If both of the child’s parents have been legally established, disputes regarding custody and child support will most likely be handled as if the parents were legally married. When a child is born to an unmarried mother, the mother is automatically granted sole custody in most states and circumstances.
Legally speaking, a father who has not established paternity has no legal right to their child without a court order.
There is no presumption of paternity, meaning that unwed fathers are not by default assumed to be biologically related to their child. Because of this, unmarried fathers can be prevented from being awarded child custody or even child visitation rights.
At first glance, this seems to be incredibly discriminatory and unfair to the unmarried father. This system is as such in order to prevent unmarried mothers from pursuing child support from the father, which would be unfair without first establishing paternity so the father may receive rights.
What Will Likely Happen If There Is a Custody Battle Between Unmarried Parents?
Once again, what will likely happen if there is a custody battle between unmarried parents depends heavily on how each state handles unmarried child custody. Generally speaking, the court will order shared custody. Other states may award joint custody with the condition that one parent acts as the custodial parent.
It is considered to be fairly uncommon for one parent to not be granted any visitation rights at all. Such circumstances would generally only occur if one parent was found to be abusive or otherwise unfit to parent. The court would need to have strong reason to believe that it would actually be detrimental to the child’s wellbeing if they were involved with the noncustodial parent.
If the child’s mother disputes the father’s claim to paternity, the father would need to petition the family court in order to establish his paternity. Additionally, the father would need to petition and establish paternity if the unmarried couple does not live together. Once paternity has been definitively established, the unmarried father is entitled to all of the parental rights as a married father would be.
In order to avoid a lengthy custody battle, it is important for both parents to do their best to remain amicable and willing to compromise. Another way to avoid a custody battle would be to work together in order to create a reasonable and agreeable custody arrangement that the court will approve of. Above all else, a custody battle would not be in the child’s best interests.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Ascent Law St. George Utah Office
Ascent Law Ogden Utah Office
— Ascent Law (@AscentLaw) October 31, 2022