Unwed fathers have the same constitutional rights as unwed mothers to establish a relationship with his child. However, in order to receive the same rights, the unwed father must first show the state he is the biological father. While state laws vary, generally a man is only presumed to be the father at birth under the following circumstances:
- The child is born during marriage to the child's mother
- He is required to support the child by law
- He has signed a declaration of paternity
Additionally, the father's constitutional rights are only fully protected if he shows a commitment to parenting. For example, the U.S. Supreme Court held that an unmarried father's personal contact with his child is substantially protected, but just a biological link does not get same amount of protection. As an example, when an unmarried father leaves his child alone, even for only two years after birth, the father does not have veto power or even have to be given notice that his child is going through adoption proceedings with its step-father.
Most states allow a putative or reputed father of the child, to withdraw a paternity claim, but there can be time restrictions that varies by state.
Mothers have custody of their children from birth, while a father only has custody if the state views him as the child's father - in which case both have equal custody rights. In cases of unmarried fathers living apart from their children, the court will grant custody if the mother is dead, refuses custody or abandons the child, so long as the father is not an unfit parent. If the father has not established himself as the parent, often the court will ask for a paternity test.
On the other hand, there are more and more couples living together that do not get married and have children from the relationship. When they separate, the proceeding necessary to legally establish the custody and support rights of the unwed parents is called a Parentage action. This is very important for involved fathers. Sometimes paternity is included in a child support determination by the state child support agency, but that is not a determination of paternity for any other purpose and does not define the father's custody rights. Therefore, the father should still initiate a Parentage action to fully protect his rights.
If there is a custody dispute, the father must show in court it is in the best interest of the child to grant custody to the father. This could be joint or sole legal and/or physical custody.
If you are looking to protect your rights as a father, contact a family law attorney immediately.