Legal Paternity Rights

by Heather Frances J.D. Google
State courts can help a father establish his paternity rights.

State courts can help a father establish his paternity rights.

David Sacks/Lifesize/Getty Images

With genetic tests now available to establish a child’s biological father with medical certainty, courts have more evidence to consider in paternity cases. However, state laws, which vary on paternity issues, often limit who may establish a paternal relationship with a child since this could be disruptive for the child. Current paternity laws balance the rights of parents and children regarding this difficult emotional and financial topic.

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Presumed Father Standard

The presumed father standard states that a child born in wedlock is presumed to be the child of the mother’s husband. Historically, this standard was developed because there was no way to prove with certainty who a child’s father was, and society felt that children benefit from stable families. This is still the law in most states, but the presumption can be challenged and such challenges involve a court procedure that varies by state.

Parental Rights

When parents are married, both have equal parental rights unless a court order states otherwise. Parental rights include the right to make important decisions for the child, determine medical care, maintain physical custody of the child, provide religious instruction and enroll the child in school. In a divorce situation, a father’s parental rights might be jeopardized if he leaves the family home without establishing a court order for custody, since leaving gives de facto custody to the child’s mother if the children remain with her.

Unmarried Fathers

Fathers who were not married to the child’s mother may be able to establish parental rights. Some states have strict deadlines during which a case must be filed and may also require genetic tests. For example, California allows challenges to the presumed father standard within the child’s first two years. A man seeking to establish paternity may also be required to file a document acknowledging paternity, legally stating he is claiming to be the child’s father. In situations where there is no presumed father, the acknowledgement of paternity, if agreed to by both the father and mother, is usually enough to legally establish paternity.


Once paternity is established, the unmarried father may ask the court for custody or visitation rights to the child, but the court will determine these rights based on the child’s best interests, not necessarily the best interests of the father or mother. If the child is already well established with the mother, the court is unlikely to uproot the child to give custody to the father unless the mother is unfit or voluntarily relinquishes custody. The father may also be required to pay child support whether or not he has custody.