It’s important to consider, “what rights does a birth father have?” When we think of families in crisis, we usually think of homelessness, joblessness, drug addiction, and mental illness. But what about crises where the child is at the center? Unplanned pregnancies, divorce, child custody battles, and Child Protective Services involvement all put a strain on families and on society. When these circumstances involve children, we automatically think of a mother as a caretaker, as the one who must bear that burden. And, in most cases, that can be true. But there are rare occasions where the birth father is as emotionally invested as the birth mother and wants to be involved in the decision making.
The argument from the birth mother’s point of view: birth mothers have carried the child for nine months, nursed the child, and often cares for the child most of the time. In many cases, the father may have abandoned the mother or been involved in domestic violence, and therefore, should not have rights. Many courts favor the woman in child custody battles, and even in Child Protective Services issues. There is an assumption that a birth mother is the better caretaker, more natural nurturer, and better suited towards child-rearing duties. And in many cases, that can be the case.
The argument from the birth father’s point of view: every child has a birth mom and a birth dad. Every child has 50% of the mom’s DNA. Every child has 50% of the dad’s DNA. It would seem like parental rights should be split 50/50. The reality is that many courts tilt in favor of the mother in Child Protective Services cases. But in many cases, birth fathers are just as emotionally invested, just as involved, and just as happy to be a parent as a mother is. Fathers do have rights.
Why don’t we talk about birth fathers more? Usually, when we see pictures of babies, those babies are being held by the mother. It is a beautiful picture. And while we may not see a picture of a dad and baby as often, I would call it awe-inspiring. A man taking responsibility for his child is remarkable. Birth father’s rights, also known as paternal rights, have been burgeoning over the last 30 years. We should not assume that all birth fathers have serious issues or are unfeeling or unaware of the needs of the baby or birth mother. Most want to be involved in the child’s life and to have some say in the child’s upbringing. These fathers do have rights.
Rights for Birth Fathers Regarding An Unplanned Pregnancy
Unknown Fathers
Birth fathers have the right to know he is a dad. In the case of a dad who doesn’t know he is a dad, he should know. For a father who is not informed of his child, a “publication” may be needed to search for the father. When there are two or more possible fathers, a paternity test may be needed to establish who is the father. Every man has the right to know he has a child in the event of an unplanned pregnancy.
Abortion
Birth fathers should be involved in abortion decisions. Though there are no laws protecting men in this regard, it is common sense that these fathers ought to be involved or, at least, informed. And while an expectant mother may often make this decision herself, the truth is, there are quite a few men who have had children aborted against his will. No, the man did not carry the child. No, the man did not deliver the child. No, the man did not nurse the child. But he did play a major role in creating that baby. He deserves to be involved in the decision.
Rights for Birth Fathers Regarding Adoption
If there is a baby, there is a father who was involved, at some point. Fathers have the right to be involved in the adoption process.
Choosing a Family
Birth fathers have the right to be involved in choosing a life plan for the child. Choosing to place a child in the home of a loving family is one of the most sacrificial, loving things a father can do. You did not fail. You succeeded to keep your child safe and well-cared-for.
Open Adoption
Birth Fathers have the right to be involved in an open adoption. Open adoption is when birth parents have some level of contact with the child after the child has been placed with an adoptive family. This is a win-win situation because each party stays connected. Consult with your attorney concerning a “Post Adoptive Communications Agreement.” The level of enforcement may vary from state to state.
Kinship Adoption
Birth Fathers have the right for a member of their own family to be considered for the adoption of his child. A kinship, or relative adoption, is when a member of the family, like a grandparent, chooses to adopt his family member. If you, as a father, are unable or unwilling to raise your own child, and if that family member can meet the requirements, kinship adoption may be a viable option. Consult your attorney and/or caseworker about this option.
Rights for Birth Fathers Regarding Child Protective Services Involvement
Having a child removed from your custody can be scary. Having Child Protective Services (CPS) and the police show up at your door can be one of the most frightening things to occur in your life and your child’s. The fear of the unknown and the waiting can be excruciating. There could be many reasons for a child to be removed, including allegations of abuse, neglect, or abandonment. One of the number one reasons for the removal of a child is neglect due to drug abuse. What may be even more frustrating is if you are in the middle of a custody battle with the birth mother and you feel the allegations are false. Regardless of whether you may be in the wrong or not, you still have rights.
Understand that the burden of proof for child removal is much less than other legal actions. Keep in mind, child welfare actions take place in civil court, not a criminal court. As such, the due process works a bit differently. Yes, you will have your day in court, but only after the child is already removed, placed in foster care or placed back with the birth mother.
Birth fathers have the right to get custody of his child back. The court does not simply “throw away the key” in these circumstances. Let’s look at some of the things many states have put into place in order to obtain custody.
Rehabilitation
If you are struggling in any of the areas below, you have the right to be rehabilitated. As a father who has lost custody of his child, it may feel like a blow to your manhood. But if you are struggling with issues, you do have the right to get “back on your feet.” You may think all of the above is merely “jumping through hoops,” but if it results in having custody of your child, don’t you think it is worth it? Consider the following:
- Drug and alcohol rehabilitation. Birth fathers have the right to attend in-patient rehab for addiction anywhere from two weeks to six months, depending on your state. You also have the right to attend outpatient classes such as Alcoholics Anonymous or Narcotics Anonymous. You will also have to take Urinalysis Tests to prove you have been clean. If you do have an issue with addiction, these classes also offer an opportunity to connect with other birth fathers struggling with the same issues.
- Parenting Classes. You may think you are a good parent and don’t need these classes, but it is a good way to learn some things you never knew before or gain some new resources.
- Employment and housing. If you are unemployed or homeless, you have the right to look for these resources so your family can have a solid foundation again.
- Counseling. If there are some mental health or behavioral health issues you have ignored in the past, you have the right to get counseling, either in a group setting or one-on-one. Many states will provide these services free of charge through the state Medicaid program.
Supervised Visitation
If you are a birth father who has lost custody of his child, you have the right to see your child. Whether supervised or unsupervised, most states allow in-person visits, phone contact, virtual visitation (Skype or Facetime), and letters or journals between men and his child. If both parents have lost custody together, visitation can be joint or separate.
Reunification
If you are a birth father who has lost custody of his child to CPS, you have the right to work towards reunification. Timelines vary from state to state, and from court to court, and from case to case; but they generally give anywhere from six months to 18 months for parents to meet all of the requirements the courts require. You may think this is a long time, but the courts want to do the due diligence in ensuring that the child goes back to a safe, healthy environment. Every birth father has the right to reunify, except in the cases of sexual assault of a child or criminal child abuse.
In all CPS cases, you have the right to an attorney. Depending on the charges, you may need two attorneys: a criminal attorney and a juvenile (dependency) attorney. If you think you have been unfairly accused or that the allegations are false, consult your attorney. What rights does a birth father have when confronted by CPS? Lots, whether you are guilty or not. If your parental rights are about to be involuntarily severed, you will need an attorney.
Rights for Birth Fathers Regarding Raising Own Child
Marriage
This may not be the first choice for many young people nowadays. But the fact of the matter is, there are more legal protections for married men than unmarried. Let’s state the obvious: if you are married to your child’s birth mother, you get to see your child every day, raise him, nurture him, love him and mentor him the way you want to, as often as you like. And, all without a court order. It is an honor and a privilege to be married. But even if things do go south in the relationship, married men tend to fare much better. For example, married men may have a better chance of custody of a child, and he may have a better chance at visitation rights.
Shared Parenting
Shared parenting, co-parenting, or shared custody, is an old idea that has taken on new meaning. This usually occurs when a couple breaks up but have a child between them. Hammering out an agreement is tough, but remember, do what is in the best interest of the child. Custody battles are usually very ugly. As in many battles, the casualties of war are usually the children and the emotions. Though it is admirable that both parties desire the best for the child, he or she is usually the one who gets caught in the middle of these ugly disputes. Here are some ground rules you should be able to agree on:
- Let’s not argue in front of the children. This creates further fear and trauma in children. It also creates an uneasy feeling in children because those children don’t know who to be loyal to.
- Let’s be cordial with one another in public. Fighting with one another in public creates shame and distrust. In the back of the child’s minds, are wondering, “how much longer before the parents do that to me?”
- Let’s not speak evil of the other parent in private. Sometimes parents aren’t aware of doing this but speaking ill of the other parent can also be detrimental. On the one hand, the child doesn’t know who to be loyal to. Parents do this sometimes because the parents do not have anyone else to talk to, but also to get the child on his or her side to have an ally.
- Let’s do what is in the best interest of the child. In our anger with the other spouse, we sometimes forget the one who is injured the most: the child. He or she becomes collateral damage in our battle with each other. Let’s do what is in the child’s best interest and make sacrifices to enter the future.
Single Fatherhood
Every birth father has the right to raise his child by himself if the birth mother is unable or unwilling to do so. Being a single dad is not as much of a stigma as it used to be. Of course, there are the challenges of working full time and providing daycare (or evening care) for your child. Parenting alone is hard, but it can be done. If the birth mother is not in the picture, I applaud a young man who can work full time, while still providing a stable, safe, loving environment for his child.
And yes, as a man, there may be a built-in bias you may need to work against. But the fact is, many courts are now favoring fathers if he can prove he is a capable caregiver. Fathers are needed to be involved in the child’s life. Children need to have a mom and dad in life. Not all birth fathers want to or are able to be involved, and that can be sad. But if a birth father wants to be engaged, we should not hinder that, but encourage it.
Consult with an attorney in all legal matters, as paternal rights differ from state to state.
Derek Williams is an adoption social worker and has been in the field of child welfare and behavioral health since 2006, where he has assisted families in their adoption journey. He and his wife started their adoption journey in 1993 and have 8 children: 6 of which are adopted. His adoption children are all different ethnicities including East Indian, Jamaican, and Native American. He loves traveling with his family, especially to the East Coast and to the West Coast and is an avid NY Mets fan! Foster care and adoption is a passion and calling for Derek, and he is pleased to share his experiences with others who are like-minded.