When parents separate, the divorce process often becomes more complex than for a childless couple. From paternity determination to custody and visitation rights, the court will need to carefully examine both parents to determine what is in the best interest of the child.
During this time, it is essential for the male parent to understand what father’s rights are and how to defend those rights to ensure equitable treatment.
Here is an overview of how these rights may come into play during the divorce process.
Establishing Paternity
Before a man can fight for his rights as a father, he will first need to establish paternity—that is, proving he is the father of the children in the marriage. This does not necessarily require a blood relationship, as a man may be the legal father of an adopted child as well. The most common methods of establishing paternity are:
- Voluntary acknowledgment – If the wife is cooperative during a divorce, both the father and mother may sign a notarized affidavit attesting that the man is the father of the children without the need for further testing or proof. However, in some divorce cases, the mother may not cooperate with this process, necessitating another avenue for paternal evidence.
- Genetic testing – Usually, a genetic test can be performed using a DNA sample from a cheek swab. Through a designated lab, the test will be used to determine if the man is the father through genetic relation of the children. However, this method does not work on adoptive and step children to whom the father is not related.
- Court order – In situations in which the parent(s) are not complying with paternity testing, the court can mandate that all parties receive a genetic test. In this case, the father’s presence on the birth certificate may itself not be sufficient as evidence of paternity.
Custody Arrangements
Once the father has proven his paternity in a manner that is acceptable to the court, he can pursue custody. The court will typically find one of the following types of custody to be in the best interest of the child:
Sole custody – When one parent is granted exclusive physical or legal custody of a child or the right to make decisions for them without consulting the other parent, they have sole custody. If only one parent has both physical and legal custody, they have complete sole custody of the child.- Joint custody – When parents share physical custody or legal custody, they have joint custody. This can be broken down into joint legal custody, joint physical custody, or joint custody of both physical and legal responsibilities. This can occur in cases in which one parent moves out of state, but the other parent continues to reside where the child has always known to be home. One parent may maintain sole physical custody, but share legal custody with the parent who moves away. In this case, the parent with sole physical custody provides a full time home for the child, but must consult with the other parent in legal matters, such as education, medical, and religious decisions.
In cases of special circumstances, other types of custody may be ordered by the court. An attorney can advise on the likelihood of these situations and how to effectively proceed.
Fathers have the right to be treated equitably when custody is determined. However, they will need to demonstrate they are able to provide for the child’s needs, as the court will primarily consider what is in the best interest of the child. Fathers should be prepared to demonstrate financial solvency, parental experience, and a good rapport with the child.
Enforcing Custody and Visitation Orders
One of the most common situations in which a father’s rights are violated occurs when the mother does not abide by the custody arrangement.
Fathers can enforce custody and visitation orders by legal force, such as by levying a contempt complaint in which he demonstrates that the other parent did not comply with the custody arrangement.
The respondent to the complaint (mother) must provide evidence that she either did comply, or did not do so out of concern for the child’s well-being. The court will then determine an appropriate remedy.
Similarly, the father may petition the court for a custody modification to change the current arrangement. This may include a request for more time, especially if they can demonstrate that the mother is not providing properly for the child. In such a situation, the father may be granted sole custody by the court.
Maintain Your Legal Father’s Rights
If you are a father facing divorce with custody issues, understanding your rights is the first step toward ensuring that your rights are respected during the process.
In cases with experienced representation, mothers don’t always receive the majority of physical or legal custody. The attorneys at Milstein Siegel can help you secure the custody and visitation you deserve or prove paternity where necessary to defend your rights.
Contact Milstein Siegel to work with a father’s rights attorney by scheduling a consultation.