The Florida Supreme Court has taken a small step toward sanity in the Sunshine State (WPTV, 6/29/18). For the first time, it ruled that an unmarried father has standing to assert his parental rights to a child born to a mother who’s married to another man. Prior to the ruling, such a father had no legal rights to the child because the law established the husband as the father.
The linked-to article highlights two fathers, Christopher Farrell and John Karpinski who found themselves in that position.
Christopher Farrell got to hold his son once months after he was born.
"It gets emotional; it hurts at times trying to think how far he’s progressing, what's his speech like? Is he saying different words? What's his favorite animal?" said Farrell.
Three years ago, he found out his then-girlfriend was pregnant, and he put together a nursery at his Loxahatchee home for his soon to be son. During her pregnancy, Farrell said she got back with her husband and cut off all ties with him.
That last clause gets to the heart of the matter – “cut off all ties with him.” Stated another way, till now in Florida, a married woman had total control over the parental rights of her extra-marital boyfriend. If she wanted him in their child’s life, he could be; if she didn’t, there was nothing he could do about it.
In this country, as throughout the English-speaking world, we say that fathers have parental rights, but all too often the exercise of those rights we place in the mothers’ hands. So family law and family court practice routinely take children from fathers post-divorce. His “rights” entitle him to see his child occasionally, usually for four days per month plus a few hours during the week. And if Mom chooses to make exercising that meager visitation difficult or impossible, she can with little pushback from the judge.
Adoption laws provide an even more extreme result. Putative father registries require unmarried men to in some way intuit that sex with a particular woman resulted not only in pregnancy but in a child. Dad’s failure to file the proper documentation with the state within the proper time-frame will result in his being removed from any knowledge of or right to intervene in the adoption of his child. So if Mom decides not to mention the existence of a child or her intention to have it adopted, Dad’s out of luck. Again, his “rights” her choice.
Paternity fraud is much the same. No law anywhere requires a woman to simply inform the father that he has a child. As before, somehow he’s supposed to figure it out for himself. How he’s supposed to do that, no one explains. As I’ve written before, this is the only place in American law that we place the onus on the person without knowledge of legally material facts instead of on the one with knowledge. In the commercial arena, we long ago gave up the notion of caveat emptor. So if A wants to sell his car to B, A has to disclose any material problems with the car prior to the sale. We don’t require B to figure out the problems because A has knowledge of them.
We protect car buyers, but not fathers. We allow mothers to control whether fathers know about and can establish rights to their children.
So the new Florida ruling is a small step toward fathers being able to exercise their own parental rights.
But it’s only a small one.
[Farrell] now has new hope that he can go back to court and show it's in his son's best interest that he has a relationship with his biological father.
Aye, there’s the rub. Yes, Farrell and Karpinski can assert their rights, but, as is so often the case for fathers, the best interests of the child standard stands in their way. The two mothers having successfully kept the two dads out of their kids’ lives for years, what court will conclude that a child’s best interests require that they now be included in any significant way? My guess is that, if they get to see the kids even a day or two per month, they should call it a win.
That of course re-urges the point I made above. How Farrell and Karpinski managed to find out about their children, the article doesn’t say. But the simple truth is that, as long as we have no legal requirement that mothers tell fathers that they’ve fathered children, dads will still be marginalized in their lives. Yes, Florida fathers can now assert their rights to children born to married women, but they can do so only if they know they exist.
As with commercial transactions, there should be a law requiring mothers to disclose their pregnancies to fathers, and, if there’s more than one potential dad, to all of them.
Still the Florida Supreme Court ruling heads us in the right direction. It just doesn’t take us very far.