By Matt Allen
Paternity is one of the areas of family law where men are routinely discriminated against.
It is so obvious that when I posed the question, "which laws in your state are particularly unfair toward men and fathers?" to Cordell & Cordell attorneys in five different states, each attorney responded with "paternity rights."
Whether it is the denial of paternity rights or being the unlawful victim of paternity fraud, fathers must be careful, as paternity law is complex.
Here is a rundown of some of the harshest laws against men and fathers.
When a child is born out of wedlock in Michigan, even if the father establishes paternity of the child, he is given no rights to custody or visitation of the child, but still may have to pay child support. He can only get visitation rights if the mother consents or by petitioning the court.
This puts unwed fathers at an immediate disadvantage because it is presumed that the mother should care for the child and the father has to fight for any rights at all.
- Attorney Jill Duffy, Cordell & Cordell
The same is true in Oklahoma as in Michigan that the court cannot put in place an order regarding custody or visitation without a parent requesting the same when in administrative court.
But there is a statute in Oklahoma that in paternity and child support arrearage cases in district court, the court will make an inquiry to determine if the noncustodial parent has been denied reasonable visitation. The court can then include visitation provisions in a support order if it determines reasonable visitation has been denied.
This law became effective in 1990, however, and no cases have cited it, so how often it is actually implemented is unknown.
- Attorney Katherine V. Lewis, Cordell & Cordell
Section IX of the Wisconsin Family Code – Paternity. The entire section is entirely unfair to men beginning with the assumption that the mother is the primary caretaker and finishing with the point that the father is statutorily responsible for reimbursing the state for birthing expenses if the mother was on state assistance when the child is born. The mother isn’t required to pay back the state, though.
- Attorney Trisha Festerling, Cordell & Cordell
Under the Texas Family Code, the harshest law on men is the section on Acknowledgement of Paternity. In Texas a child’s mother and the man claiming to be the father may execute an acknowledgement of paternity that is then filed with the Bureau of Vital Statistics.
In order for a father to rescind an acknowledgement of paternity, he must file an action to rescind the acknowledgement (or denial) no later than 60 days after the date the acknowledgement (or denial) is filed.
However, if a man signed an acknowledgement of paternity mistakenly believing himself to be the father, or if a presumed father signed a denial of paternity mistakenly believing that he was not the father, a suit to contest the acknowledgement what is not filed within the 60 day period may only be filed on the basis of fraud, duress, or material mistake of fact and must be filed within four years.
Thus, this rule is harsh on a man who is told he is the father, signs an acknowledgement and later finds out he is not the father and the 60-day period has passed. He then must prove fraud, duress or material mistake of fact, and it must be proved within the four-year statute of limitations. See Tex. Fam. Code Sec. 160.308.
- Attorney Jennifer Hankinson, Cordell & Cordell
Paternity laws in Illinois are definitely skewed in favor of the mother.
The current state of the parentage laws requires the father to seek court action to provide him with enforceable visitation rights with his child, whereas the mother is automatically given rights regarding custody and visitation.
Even if a father signs a Voluntary Acknowledgment of Paternity, which is an acknowledgement that he is the legal father of the child, the acknowledgement form specifically states that it does not give the father custody or visitation. It just gives him the right to ask the court for custody or visitation.
However, by signing the acknowledgement, the father is acknowledging that he is responsible to provide financial support to the child, including child support and medical support.
Until a court order is entered regarding custody and visitation, the father has no legal right to visitation with the child even though he has signed a voluntary acknowledgement of paternity. This puts the mother in a position to deny visitation to the father, until he is able to obtain a court order awarding him visitation.
One Illinois statute provides that "when the parties have never been married to each other, the mother has legal custody of the child unless a valid court order states otherwise." (720 ILCS 5/10‑5).
Similarly, the Illinois Paternity Statute provides that "if the parentage judgment contains no such provisions [regarding custody], custody shall be presumed to be with the mother." (750 ILCS 45/14).
- Attorney Erin Brockhoff, Cordell & Cordell