For Unmarried Fathers, Now is Then

December 30, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

Here’s one of those ‘Ask the Lawyer’ type of articles that appear in so many publications (Lebanon Democrat, 12/27/18).  This one’s short, but reveals so, so much.  The lawyer is Jim Hawkins of Tennessee.  He begins his piece with a fact:

Striking fact: During 2017, 43.6 percent of all Tennessee babies were born to unmarried mothers.

That is indeed a striking fact.  The national average for births to unmarried mothers is a little under 41%, so Tennessee is somewhat above the norm.  But suffice it to say that, whether in the Volunteer State or in the country beyond, nearly one in two babies is born to a mother who’s not married to its father.  In short, unmarried childbearing is common.  So we might think that our legal system would long ago have come to grips with the fact unmarried childbearing and the disparate consequences for fathers and mothers. 

It hasn’t, as Hawkins makes clear.

Q. Who has custody when a child is born to an unmarried woman?

An unmarried mother of a child has full and sole control over her child, unless and until a court order says otherwise.

Q. How does a father get a court order for parenting rights?

The father of an unmarried woman’s child must file a written request called a petition through the juvenile court to establish paternity and parenting time.

The law in Tennessee, like the law in every other state, places no requirements on mothers (whether married or not) for them to claim parental rights.  A married father is assumed to be the father of any child born to his wife, whether he is or not.  But an unmarried father – i.e. over 40% of all fathers – has no such rights.  In order to claim his rights, he first has to know about the child.  No law anywhere requires a mother to inform the father of her child that he has a child.

Second, he has to know that the law requires him to jump through various legal hoops to secure his parental rights. 

Third, he has to hire a lawyer, file the correct documents in court and have genetic testing performed.  That latter of course means obtaining tissue samples from the child.  If Mom doesn’t want that to happen, she can make his parental rights very, very difficult to come by.  Having spent all that money, Dad’s lawyer must then present the evidence in court.  That establishes his biological relationship to the child and therefore parental rights and obligations.  But of course it doesn’t get him parenting time.  To do that, he must demonstrate that he’s a fit parent.

All of that takes time and money on Dad’s part.  Many, many fathers don’t have that money and, even if they do, don’t know the legal requirements placed on unmarried fathers.

All that is an artifact of long bygone days when it was assumed, not just by the law, but by society generally, that women were generally uninterested in sex, that men were interested in nothing but and that unmarried men were ravening wolves forever lying in wait to prey upon innocent young girls.  Unmarried women who became pregnant were assumed to have been “seduced and abandoned” by one of those wolves.  Because unmarried men were assumed to be bad actors, the law imposed duties on them in paternity cases it didn’t impose on women.

And naturally, prior to the advent of genetic testing that proves biological paternity, everyone knew who the mother of a child was, but the father’s identity was less certain.  So we demanded that he come forward and claim his rights, assuming that, if he were the father, he’d want to do that.  The well-known phenomenon of paternity fraud we preferred to ignore.

But, as the saying goes, that was then and this is now.  Or at least now should be now.  Unfortunately, when it comes to our laws regarding paternity, now is very much then.  That is, we have ready access to genetic testing, but we refuse to use it.  That refusal transfers onto fathers the financial burden of proving paternity that should have been established at the birth of the child.

As I demonstrated above, proving paternity is a costly process for unmarried fathers, one that many of them can’t bear.  And, whether they can pay the freight or not, the question of why they should have to arises. 

We test babies at birth for something like 32 different medical conditions, so we take samples of their blood.  Why not take a bit of Dad’s as well and find out if he’s the father or not?  Doing so would effectively place the cost of establishing paternity on the insurance companies that pay the costs of childbirth and, in some cases, the public.  Therefore, the cost would be spread to millions of people instead of just one, who very often can’t afford to pay it.

And of course, as I’ve argued many times before, testing every baby at birth would mean that, with very rare exceptions, we’d never be in the dark about who is and who isn’t the father of a child.  That would mean a vast saving of money to sort out paternity later and every child would know his/her genetic inheritance.  That would help immeasurably with medical diagnosis and treatment in cases of inherited conditions like cystic fibrosis.

But important too is how we treat fathers.  Despite having the wherewithal to establish paternity with complete certainty from the first days of a child’s life, we instead place the burden on individual fathers to do so, while mothers have no such burden.  DNA testing of all children at birth would send an unmistakable message to dads that they’re valued by society.

The message we send now is exactly the opposite.

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