Equal Rights for Fathers

Equal rights for fathers may be in sight.

If you are a father who has a child by a woman you are not married to, you should know what rights you have to your child. If you were not married to the child's mother at the time of birth, then you may not have any rights. Courts award custody of children to their mothers in astonishing numbers, but that has not always been the case.

History

Colonial America adopted the English approach to child custody. Fathers had an absolute right to custody of their children, because at the time, women were legally the property of men. Fathers had the means to provide for and protect children, while women were unable to contract and make important decisions. In rare cases of divorce, custody was awarded to the father. At this time, people lived and worked on farms. Fathers began to work outside of the home, when industry became the main source of income. Mothers then became the parents who could properly care for children, as they were more likely the parents who stayed home with the children.

Legitimation

If a father was never married to the mother of his child, he must legitimate the child before he can consider having any legal right to custody to the child. Legitimation is a process of legalizing the paternity of a child that is available exclusively to fathers. Once a father has legitimated a child, the father can have custody and visitation rights to the child.

Best Interests

All child custody disputes are decided by the best-interests standard. A court considers many factors when determining what would be in a child's best interests, such as: the need of the child to have a frequent, continual and meaningful relationship with both parents and which parent is more likely to foster that; the interactions and relationships with the parents and siblings; the child's adjustment to the home, school and community; the health of everyone involved; the ability of both mother and father to act as parents; either parent's intention to relocate the child; wishes of the parents, and the wishes of the child.

Tender Years Presumption

The tender-years presumption was grounded in the belief that a young child should be in the custody of the mother unless the mother was unfit. Most states have abandoned this rule, because tailoring court decisions based on a person's gender has proven to be unconstitutional. As a result, a number of states have created a preference for custody of the child to go to the child's primary caretaker. That usually ends up being the mother, but courts have decided to make these decisions on a case-by-case basis, giving fathers more of a fair shot at gaining custody of their children.

Joint Custody

Some courts prefer a joint custody arrangement between the mother and the father of the child, if the parents can cooperate in this setting. When a parent has joint custody, he possesses equal custody rights as the other parent. Joint custody means that each parent has legal custody of the child and shares in the decisions that go along with raising the child. Either of the parents may be awarded physical custody.

References

• Lagging Behind the Times: Parenthood, Custody, and Gender Bias in the Family Court
• Michigan Legal Aid Child Custody in Michigan- Initial Determination
• Legal Information Institute: Child Custody

Resources

• Macon Divorce: Legitimating a Child