Defining a Legal Father
To be a legal father means to be recognized under the law as the dad of a child. This occurs when a child’s parents are married or when a man signs an acknowledgment of paternity shortly after a child is born or when he establishes paternity in court. A legal father may go by other terms such as declaratory or adjudicated.
Parents in a marriage automatically have legal rights and responsibilities for their children. This arrangement may be contested should the child’s biological mother remarry, submit another man’s name on the birth certificate or have the child legally adopted .
An unwed couple may establish the legal father’s paternity at a hospital shortly after the child is born. The couple submits an Acknowledgment of Paternity (AOP) to the state, which the hospital staff can supply to them. The AOP is a two-page form in which both parents provide their names, addresses, Social Security numbers and dates of birth. When the clerk of court judges the AOP to be valid, a legal father is established, and his name can be added to the child’s birth certificate at the time that the child’s name is amended. If the AOP was not signed at the hospital, the biological father may petition the court for paternity establishment through a court action.
Defining a Biological Father
Biological fatherhood embodies the simplest and most natural of all parental connections. It is a bond based entirely on genetics, an unbroken chain passed from one generation to the next without intrusion, mediation or modification. The term ‘biological’ indicates a genetic relationship, one that stands in contrast to legal parenthood. Whether through adoption, legitimization or another legitimizing event, legal fatherhood often asserts itself without any biological basis at all. While a legal and biological father may be one and the same, this is very rarely the case; statutes, legal conceptions and institutional mandates simply ignore all biological matters when declaring biological paternal rights and responsibilities. This is, of course, the opposite of biological conceptions and determinations. The biological father, as his name indicates, is known to the courts via genetic tests, which determine paternity (as well as maternity) beyond all doubt. Such tests – blood tests, DNA tests, cheek swab tests, even test of bodily fluids – are all high, constant and unfailing. Even in the realm of toxic sexual behavior, the biological father’s claim cannot be shaken. In this way, biological fatherhood is both an advantage and a disadvantage. With such a clear basis, it should come as no surprise that biological fathers enjoy nearly unending male parental rights and responsibilities. They have no requirement to financially support their child’s other parent, have no constraints towards providing any custodial arrangements, face minimal limitations with regard to contact and cohabitation, are never bound by agreements allowing the mother to place the child with other guardians. Perhaps most importantly, a biological father has a preemptive claim to paternity. In most U.S. jurisdictions, the courts will not presume the other parent to be the child’s biological parent. As a result, biological fathers are presumed to be the child’s primary custodial parent until proven otherwise. All of these benefits are of course tempered by one key responsibility: financial support. In determining financial support, the courts ignore the child’s parentage. Biological parenthood is of no real consequence. Instead, the courts will examine the number of children currently supported, the financial state of the parent and the total needs of each child. That said, the biological father enjoys a comfortable legal position. It is thus unsurprising that so many of those who do not have custody of their children are biological fathers.
The Difference Between Legal and Biological Fathers
The key difference between a legal father and a biological father is the extent of their legal relationship with the child. Brenner & Salz are experienced family law attorneys who have helped many clients understand the differences and implications of these roles, as well as advise and assist them throughout the modification and establishment of these relationships.
Legal Father
A legal father holds responsibility for the welfare and upbringing of a child. The most formal establishment of a legal relationship is the marriage of the biological parents. When a couple is legally married, there is no additional action necessary to establish paternity or parenting rights. As a result of the marriage, both spouses are presumed to be the legal parents of any children born to the couple. If the parents are not legally married at the time of conception, statute allows the presumption that the woman’s husband is the father of the child if a few criteria are met: However, if several criteria are not met, the biological father must establish his parental rights through a court petition. Many times, if a child is born when the parents are not married, the biological father may have no legal rights to the child unless the couple makes a formal agreement that gives the biological father parenting rights. In addition, even in informal circumstances where parents are not legally married to one another, paternity testing could be requested by either party as it relates to inheritances, support and other legal matters for determination of parenting time, child support, etc. If a child is born when the biological father is not married to the biological mother, there are several options available: Finally, if a person raises a child as though they are the legal parent, even if that person is not biologically related to the child, can establish the legal father status as a de facto parent. The legal system views this person as a functional parent of the child, rather than a biological one.
Biological Father
In contrast, a biological father is merely the man whose sperm made contact with the woman’s egg to create the child. This does not affect their legal rights toward, parenting of or involvement with the child. Many people mistakenly believe that if a biological father does not acknowledge paternity at the hospital when the child is born and does not put his name on the birth certificate, he is not legally related to the child. Instead of being automatically considered the legal parent of the child, the biological father must take action to establish his parental rights to the child or risk losing out on the ability to parent. Furthermore, the biological father may be financially responsible for the child, depending on the circumstances. For example: If the couple were married at the time of conception or birth, the biological father would not be liable for child support, even if the child is his biological son or daughter.
Establishing Paternity
If a man is married to a woman and she gives birth, the marriage establishes the husband as the legal father of the child. If a married couple separates and the wife has a child, but the husband is not the biological father, who is the father? It’s important to clarify this before moving forward. If a mother has no legal father, he is automatically assumed to be the biological father. He has no legal rights or responsibilities. If paternity is established, the biological father has rights and can obtain visitation, parenting time , or parental responsibilities.
Being court-ordered to pay child support is only possible with legal paternity. Paternity can involve a legal determination if the mother and the man do not agree that he’s the father. If so, a court order is required. Otherwise, you can establish paternity by initialing the acknowledgment of paternity form from the hospital. Another way to establish paternity is through DNA testing.
After paternity is accepted, the father can be asked to pay any child support that accrued before paternity was established. Until that time, he doesn’t have to pay because he isn’t legally considered to be the boy or girl’s father.
Paternity: Its Legal Significance
The legal recognition of a father brings about a number of responsibilities and privileges. In most jurisdictions, a biological father is not automatically listed on a birth certificate like a mother and an otherwise married couple gets, instead, a certificate for both the mother and father.
Until paternity is established, child support (also known as "child maintenance") is scant, because there is no enforceable order for a non-custodial parent to give a custodial parent money to care for a child. Likewise, without an enforceable order for child visitation, a non-custodial parent can be excluded from a child’s life, effectively severing the bond between the father and child. Moreover, a child cannot have a dual residency, so the father will have a tough time with legal rights over the child if his state of residency is different from the mother.
Failure to establish paternity can prevent a biological father from having a say in education, health care, and religious matters. Revoking consent for emergency medical treatment can be difficult without a clear parental designation under the law, and courts do not like to play God regarding the well-being of a child.
Interstate and international travel can be nearly impossible as well, because a biological father will have a hard time with authority over a child if the other parent becomes deported or marries another person. In such a situation, the biological father may find him or herself fighting with either undocumented immigrants or the United States government.
No matter the scenario, the results are nearly universally convincing: a biological father must be declared in order to assume the many legal responsibilities and privileges of fatherhood. To do otherwise can lead to standing in line at the courthouse, fighting for years over child support orders or custody awards, and chasing after the other biologically responsible party overseas to make sure that the child has the people and resources necessary for a healthy upbringing.
Challenges and Solutions
Common paternity disputes include:
Contesting the legal paternity determination
Discrepancies of legal versus biological paternity based on information discovered after a child’s birth, due to such things as adoption, or even just the "wrong" child being named in court documents.
Allegations involving margins of error in biological paternity tests , particularly in situations involving half-siblings.
Disputes involving paternity testing are typically decided by both courts and mediation, with courts deciding the weight and admissibility of expert testimony, and mediation potentially sifting through the facts in the case to determine the most appropriate parent(s) for a child.