By attorney Yvette Harrell, Special to THELAW.TV
Unwed dads usually face tremendous challenges when trying to assert their rights as fathers. Historically, dads have tried (usually in vain) to navigate the family law system themselves, without any real knowledge as to how to do so successfully. Although there is no substitute for competent legal counsel, hopefully the list below will help dads better understand what they should and should not do when tackling legal issues concerning their children.
The following list contains five important things that unwed fathers need to know:
Signing the birth certificate for your child does NOT mean that you have asserted your rights as a father. Only a court can adjudicate (confirm) paternity. Without a court order, the father of the child does not legally have any rights to the child (although there is still an obligation to support the child). Dad needs to file an action to establish paternity in order to have the court recognize him as the child's father and confirm his rights related to that relationship.
If the mother of your child applies for any type of assistance from the government (i.e. "food stamps," Medicaid, etc.), the state will initiate a child support action against you, regardless of whether she wants to pursue it or not. Many men are surprised to find that the state can initiate an action against dad for child support, even if mom does not ask for the state's help. The application for government assistance requires that mom disclose dad's identity. If she refuses to do so, or is dishonest about her knowledge, her application can be denied without further review. Once the state knows dad's identity, it will initiate an action against dad to ensure that he is providing support for the child as well.
Almost all couples who become litigants in a child support or custody action initially had some sort of "understanding" or "agreement" between them. Agreements are only as good as the will of parties who created them. While it is great that you BELIEVE that your relationship with your child's mother is such that there is no need for a court to intervene, it is likely that the relationship will not always be pleasant and amicable. 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. There is a common myth that dad will not be given credit for any child support provided before a court order. This is simply not true. With proper documentation (receipts, money orders, etc.) and organization, the court will be more likely to accept that support and give the credit to the father. 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."
- Child support has nothing to do with rights to spend time with a child and vice versa. Dad's obligation to pay child support has NOTHING to do with his rights to spend time with his child. In fact, as indicated above, dad could be ordered to pay child support without the court ever considering his rights to spend time with his child. There are some men paying child support who have no legal rights to their children. Dad's payment of child support does NOT automatically give him timesharing (visitation) rights. Those rights must be specifically granted by the court.
This list is by no means exhaustive of all of the things unwed fathers should know regarding their children, but it is a good place to start. The more fathers know, the better their chances at establishing a positive and consistent relationship in the lives of their children.
The author, Yvette Harrell, is a divorce lawyer in Fort Lauderdale, Fla.