October 13, 2013 by Robert Franklin, Esq.
The mainstream media routinely get it wrong on fathers’ rights and everything that goes with them. The amount of mis/disinformation floating around in the ether can be downright daunting. So it’s nice to see the occasional article that’s accurate, like this one (ABC News, 10/8/13).
The article is about unmarried fathers and the obstacles they face in trying to get and maintain some sort of relationship with their children. The piece is far from complete, but, as far as it goes, it provides a good resource for men who aren’t married but who have children. It purports to set men right about basic misconceptions about their rights and obligations as single fathers.
I call that a good thing because about 42% of all children born in the United States have single mothers. Of all the changes to U.S. society over the past 50 years, one of the most significant is our decoupling of childbearing from marriage. Back in the 1960s, African-American women led the trend toward non-marital childbearing and even then it was well known to be bad for African-American society and culture. And sure enough, that’s how it’s turned out; children without fathers constitute one of the most significant indicators of a society with deep and intractable problems, and much of African-American society reflects that, from substandard education and earnings to involvement in crime and illegal drug use.
For reasons that escape me, white American society followed suit and we’re now inheriting the wind. Divorce and single motherhood have created entire generations of children who have little contact with their fathers, little concept of what a father is and little understanding of masculinity. The U.S. Bureau of the Census reported last year that some 35% of children have little or no contact with their fathers.
A number of things explain that, but none is more important than the system of family courts and family laws that does its utmost to make sure kids have as little contact with their fathers as possible, all the while swearing that everything it does is in “the child’s best interests.”
Now, a married father at least has a chance to have and maintain a real relationship with his child. It’s far from guaranteed, but he starts off well ahead of his unmarried counterpart when it comes to his parental rights. And that’s where the ABC article comes in. It’s an effort to let single fathers know at least some of the basics about the long, uphill road that lies before them.
Signing the birth certificate for your child does NOT mean that you have asserted your rights as a father.
Exactly right. It’s better to sign the birth certificate than not, but by itself, it gets a single father nothing. Several jurisdictions, like California, require a single father to prove his paternal bona fides before granting him parental rights. Basically, he has to show his dedication to the mother and his child and being at the hospital for the birth and getting his name on the birth certificate help that process.
Of course if she doesn’t want him there, he’s not going to be. Nothing on the planet requires her to give him any information at all about his child, when her due date is, which hospital she’s going to, etc. If she doesn’t, he’s got to figure it out for himself, but even if he does, she can simply tell the hospital that he’s not the dad, that he’s violent, that he’s harassing her, etc. and he’ll be barred from entering.
But even if he does get his name on the birth certificate, that means zilch. To establish paternity and parental rights means going to court. It means a DNA test and other evidentiary requirements depending on the state. No mother need do anything of the kind. Her rights are established by her biological relationship to the child. His are established by that, plus what she’s allowed him to do to prove his worth.
Almost all couples who become litigants in a child support or custody action initially had some sort of “understanding” or “agreement” between them.
That may or may not be true, but the writer can’t possibly know which it is. That’s because no state keeps any sort of data on that topic. The vast majority of states make no effort to record even the basics about what family courts are doing regarding custody, much less whether couples have a pre-split agreement.
Still the writer’s point is valid. Don’t rely on some understanding you have or think you have with the mother of your child. It’s worth absolutely nothing and is 100% subject to her whim. If she wants to honor it, fine; if she doesn’t, there’s not a single thing Dad can do about it.
The best option for dad is to file a petition to establish his rights and obligations as the father of the child. Otherwise, dad’s ability to spend time with his child will be subject to how mom feels at that moment – good, bad, or indifferent.
You CAN receive credit for support if you are able to PROVE financial support of your child even before the court order has been issued.
Conversely, after an order of support has been issued, any support dad provides in a manner different than what the order requires, or in addition to what the order requires, can (and probably will) be viewed by the court as being “gifts.”
That’s always astonished me. If Dad’s child support order tells him to pay through the state’s child support agency, that’s the only way a court will honor his payment. So, if he pays the agency, he’s in the clear, but if he hands the same money to the mother directly, the court will treat him as if he’s paid nothing.
Pretty much any way you look at that, it makes no sense. For one thing, money is a fungible good. Money paid to the state agency that’s then handed over to Mom is exactly the same as money paid directly to her. The two are equally useable by her and, since there’s absolutely no obligation on her part to prove that she actually uses the money for the child, why penalize the father for paying her directly? Mother and child got the money from him. What else is important?
Also, the law on gifts is long settled. To make a gift, a person has to transfer possession of something to another person and he/she has to have “donative intent.” That means the giver has to intend that the item given is to be a gift to the recipient. In that way, the law to distinguishes between a gift and a loan.
So how is it that a payment of child support by a non-custodial father to a custodial mother, that he intends as child support, can be miraculously transformed by a court into a gift? He’s not intending to give her a gift, he’s intending to pay his child support obligation. But, in their never-ending quest to punish fathers for mostly imagined wrongdoing, courts have figured out that fathers who pay child support outside of an existing court order are just doing so out of the goodness of their hearts. Amazing.
As I said, the article doesn’t cover the waterfront of the problems facing single fathers. How could it? That topic would take a book at least. It never touches on putative father registries or adoption; it doesn’t mention paternity fraud; it says nothing about child abduction or move-aways; not a word is written about claims of domestic violence and their use against fathers to keep them from their children; nothing in the article suggests that fathers are entitled to custody or that mothers can be unfit parents.
Still, as far as it goes, it’s a worthwhile and informative little article. And that’s more than you can say for much of what we see in the mainstream press on the subject of fathers and their parental rights.
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