It’s a common theme. “Father’s rights.” Some law firms base their entire practice on the concept that dads are second class citizens, and that to make things right, they need a tough, smart lawyer who understands “father’s rights.”
It is a clever marketing gimmick. But does it reflect reality? Are dads really at a disadvantage? Like most things in the law, a reductive “yes or no” answer isn’t helpful. The reality is a bit more complicated than that.
Let’s start with the obvious. Everyone has a biological mother. In law, as in biology, a mother’s rights are presumed automatically when the child is born. Simple enough.
Everyone also has a biological father, but not every child is born with a legal father. As we discussed previously, these are two different things. A man can be a father both biologically and legally, or he can be one or the other. If he is married to the mother, he is automatically presumed to be both. Without needing to sign anything or go to court, his name goes on the birth certificate right with the mother, and he gets the authority to act as the child’s parent throughout the marriage, and even after the marriage ends.
That’s all well and good for a married father, but it is increasingly the case that parents are not married. I am going to date myself a bit here, but when I was growing up, parents having children out of wedlock was nearly unheard of. My, how things have changed. Just in the first part of the 21st century, unmarried parents in Louisiana went from being the minority to being the majority. According to data from the CDC, in 2005 unmarried couples constituted about 48% of all parents in Louisiana. As of 2019 — the most recent year for which data is available — that number jumped to 54%, making Louisiana a close second to Mississippi as the state with the most unmarried parents in the nation.
In many respects, the legal system has adapted itself with uncharacteristic flexibility to a dramatic, new world of single parent households. This is a good thing. For better or worse, I do not see any way the old world of predominantly married, two parent households is coming back.
However, there is still a lot of work to be done to level the playing field for fathers who never married the mothers of their children. An unmarried father who has not established paternity does face an uphill battle in staying a part of his child’s life. There are no presumptions he can rely upon at all. Unless and until paternity is established, there is no automatic recognition of his rights. If the parents are not on good terms or cannot agree that he is the father, he is at a disadvantage in establishing and then exercising his rights as a parent.
Unmarried parenting is a touchy topic, and I do not want to delve too deeply into that controversy. However, unmarried parents are more likely to head a one-parent household, and single parents face a daunting task compared to two parents who share decision making and responsibility. I do not think it is a coincidence that Mississippi and Louisiana, the two states that lead the nation in unmarried parents, also lead the nation in infant mortality, child poverty, and other unfortunate metrics adversely impacting children. This is borne out by data showing that even a child in a stable single-parent household is likely to do worse on some measures than a child of a married couple. A child with two parents in his life has a better chance at happiness; plain and simple.
I do not say this to beat up on unwed moms or say these disparities are their fault. Far from it. Rather, I believe the increasing prevalence of single parent households presents new challenges that society has yet to acknowledge let alone catch up with, and children suffer as a result. Until society does catch up, it turns to the mother and the father to move past their individual disagreements, overcome lingering structural social inequities, and make the best life they can for their kids; even if they have to do so from separate households.
Sadly, it is not uncommon for a client to tell me that he has not seen his child in months because the other parent refuses to allow it. Sometimes there are very good reasons for this, but other times it is simply that the parents split acrimoniously and do not get along, or the mother has simply moved on and feels the father is not needed in their lives.
Where paternity is already established, even if the parties were never married, the playing field for the father to make a comeback is more equal. An acknowledged father seeking to establish custody of an estranged child is often surprised at my advice that if he wants to, he can simply leave my office, pick up his child, and take him home. It may have been months since he has seen his child. It may even have been years. It doesn’t matter from the perspective of the law. The mother may get desperate, and try to call the police. The police will tell her it is out of their hands and she needs to get a lawyer. Because there are no ground rules in place, the father can use the rights he naturally has and turn the tables; putting the mother in the position of needing to establish her rights.
Now naturally, this is not good advice. An estranged father simply showing up at school unannounced to take his child back to a home she or he barely knows is probably going to psychologically injure the child, strain further the relationship between father and mother, and make it all but impossible to co-parent in the short term. But it serves to illustrate for estranged fathers that they really can enjoy the same rights as the mothers. When paternity is established but custody is not, there literally are no rules. It all comes down to which parent is there and decides to act. If the mother has the child and consistently refuses the father’s requests to see the child, the mother wins by virtue of the simple fact that she is the only one who has stepped up and seized the role.
The reason I illustrate the point in this manner is not to encourage chaos, but to discourage it. Co-parenting does not really work when there are no rules. A child cannot grow up in a stable environment when his parents refuse to coordinate with each other. When an estranged father feels powerless, he needs to understand that he only has as much authority as he is willing to exercise. If parents cannot agree, that means bringing the matter to court and having the law decide. If the father never takes that step, then yes, the mother’s rights take priority by default. If he does, the court will impose rules on both of them that will level the playing field by the force of law.
Now, grown people who have children of their own do not like being told they need outside rules and guideposts as to how to raise their children, nor punishments leveled against them for deviating from the rules. The fact is, if the scenario we are talking about in this post hits home for you, you absolutely do need this. That does not mean you are a bad parent. It does mean the parenting relationship is broken, it probably has been for a long time, and the best way back is through a well-crafted contract with each other that sets a tight schedule, requires communication with each other, and ultimately — hopefully — leads to the parents working together on their own on what decisions are best for their child.
Once you’ve started down the road, you’ve taken the biggest step toward prioritizing your rights, and more importantly, those of your child as well.
