What Are the Rights of an Unwed Father?

Over the last couple decades, family law has done much better about evening the law across genders. Women can pay child support, and men can receive spousal support. As with any shift in legal perspective, however, many of the original inequalities in the law still bleed over to the modern day.

This difficultly in breaking with tradition, coupled with rumors and misinformation, often leaves fathers confused about their rights. Many men still operate under the assumption that, as fathers, they have inherently fewer rights and less access to their kids.

Fortunately, such claims are false. If you are a child’s legal father, you have all the same parental rights as any mother.

Paternity and an Unwed Father’s Rights

If you were reading closely above, you will notice that we included a slight caveat. We intentionally said, “if you are a child’s legal father” when discussing your rights.

Despite being a child’s biological father, you may not be their legal father. This is due to the legal standard of “paternity.”

Paternity is the term for a child’s legally recognized father. If you were married to the mother at the time of the child’s birth, and have since divorced, you probably have nothing to worry about. If you signed the birth certificate, you most likely have paternity.

If, however, you were unmarried when the baby was born, you might not have legal fatherhood. When the baby is delivered, there is no uncertainty about who is its mother. Fatherhood, however, must be verified. If you were never married to the mother, and you never filled out any paperwork, you may not be the child’s legal father. If this situation applies to you, call an attorney to rectify this problem right away. If the mother agrees, you can both sign a VOLUNTARY SOMETHING OF PATERNITY. Once this document clears, you will have your full, parental rights.

The situation becomes even more complicated if the mother is married to another man. Regardless of biology, if a woman delivers a baby, her husband can be granted full paternity. As long as the man fills out the appropriate paperwork, the state doesn’t ask any questions.

If you are stuck in this situation, you must petition for your fatherhood. The court may order bloodwork to confirm your relationship through DNA, and you could face opposition from the legal parents. Even if you prove your biological connection, the court may deny your request for paternity. It always attempts to make decisions in the best interests of the child. If it believes that the child would be better off in their current family dynamic, it can uphold the other man’s paternity. If you need to engage in this fight, make sure you have a strong attorney on your side.

Fathers’ Rights

Marriage has no bearing on your rights as a father. If you are recognized as the child’s dad, you can enjoy all the freedoms thereof. Here is just a small sample of your rights, even if you aren’t married to the child’s mother:

Child Custody

As we mentioned earlier, courts are far more willing to look at a situation objectively, ignoring gender. California’s custody system works on percentages. One parent could have the kids for 70% of the year, and the other gets them for 30%, etc.

Being a man should not impact those percentages. If you are better suited to care for the kids the majority of the time, you should make your case in court. Perhaps you were a stay-at-home father during the marriage. Maybe your spouse has a substance abuse problem or is unskilled or unfit for parenting some other way. Whatever the case, if you need a greater percentage of custody, you should make this fact clear in court.

Of course, courtrooms are filled with people who have biases, and judges are not immune to such prejudices. Some judges still hold on to old ideas that mothers are inherently more qualified to have greater custody. Even in our modern age, make sure you have a qualified, capable attorney who can help argue your case for a greater degree of custody.


Many scenarios can make it difficult to take the kids full time. Perhaps you find yourself far from the kids and their mom, or maybe your work schedule makes it difficult to keep them for long stretches.

Whatever the case, if you don’t have the kids full time, you can schedule visitation time with them. These visits can be in person, or you can do them electronically. Scheduled phone calls and video chats count.

Visitation cannot be blocked by the other parent, even electronic visits. It is legally mandated, and the court expects everyone to follow through.

Child Support

Far too often, child support is regarded as a burden, unfairly forced upon someone. This is the wrong way to view it. Child support keeps you engaged and involved in the child’s life. It allows you to contribute to their welfare. It’s not a payment from one adult to another; it’s money that goes directly to the kids. If the receiving adult uses this money on themselves, they can face legal consequences.

Health Benefits

As a legal father, you can put your kids onto your health plan. This may be necessary if the other parent is unemployed or has a weaker insurance plan than yours

You can use any benefits derived from a family connection. There are certain benefits your kids can take advantage of if you are in the military. You can also use certain plans that give you time off if your children are sick or need special care.

Fathers’ Rights and Same-Sex Couples

Paternity is the ultimate determining factor in whether you have full parental rights. If you are in a same-sex marriage with a biological father, and you legally adopted the child, you can retain all the rights outlined above. It doesn’t matter if the marriage ends or if any other circumstance takes you from the nuclear family unit. If you are the child’s legal father, you always will be no matter what.

Challenges to Your Rights

Parental rights can be revoked for abusive, neglectful parents. In less extreme cases, abusive parents can have restraining orders filed against them. This can limit their access to the children. If you’ve been accused of this behavior, you need a strong lawyer to argue in your defense. This process will resemble a criminal trial, where your attorney presents evidence, disproving the allegations placed on you.

You may also face challenges from the other parent withholding or blocking your rights. They may spend child support on themselves. Perhaps they keep the kids from you on days when you are meant to take custody, or they obstruct your visitation. These are illegal acts, and if the other parent is doing this, you need to work with your attorney to let the court know what’s happening.

If you have concerns about your rights as an unwed father, reach out to our firm for help. For a consultation, call (949) 565-4158, or contact us online.