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Are the Rights of Unwed Fathers Guaranteed by Law?

By Minara El-Rahman on February 03, 2010 | Last updated on March 21, 2019

The rights of unwed parents have always been a little tricky to define by law. However, it is even trickier for courts to decide on the parental rights of unwed fathers versus unwed mothers. According to Hofstra Law Professor Joanna Grossman, "unwed fathers in most states do not have the same rights as unwed mothers vis-à-vis their children."

However, that does not mean that the rights of unwed fathers do not exist. Grossman describes a case recently decided by the Supreme Court of Nebraska (In re Adoption of Corbin J.), where and unwed father protested against the adoption of his son by the man who had married the boy's mother.

The court ultimately decided that when an unwed father acts like a father and performs parental obligations, then he is entitled to some form of parental rights. When the unwed father performs paternal commitments, he should be granted legal rights regarding his child. 

Constitutional Rights Of Unwed Fathers

While the rights of unwed fathers are limited, many fathers have used the Fourteenth Amendment to challenge the termination of their parental rights when the birth mothers relinquish their children for adoption.

States have almost complete discretion to determine the rights of a putative father at termination of parental rights or adoption proceedings. As you can see with this Nebraska Supreme Court case, the decision to rule in favor of the unwed father was hinged not by biology, but by familial ties through the actions of the unwed father.

Who is A Father?

The statutory definition of a father in most jurisdictions are: men who are listed as the father of a child on a birth certificate, a man living with the mother of the child and presents himself as the father of that child, a man who the courts have determined is the father of the child through paternity tests, a man who is referenced in an affidavit by the mother indicating that he is the child's father; and a man who has filed for paternity in a court of law.

What Are Some Parental Rights An Unwed Father Can Raise?

Child custody, visitation, and child support are all issues that unwed fathers should be aware of. While most unwed fathers will not be granted sole custody of his child (if the mother is fit), he will be granted visitation rights. Unwed fathers must pay as much as married fathers in child support according to child support guidelines. This requirement of support lasts until the child becomes an adult.

In the end, it is up to the unwed father to make the move to be involved in his child's life. If he can shoulder the responsibilities that go along with being a father, more courts are willing to grant rights with regards to his child.

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