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Father or Mother?

The changing nature of marital and other domestic relations in the United States, and concurrent changes in public attitudes toward such things as the status of children born outside of marriage, have been accompanied by an evolution in the manner in which the legal system treats a number of issues of family law. One group of these issues concerns the right of a putative father, that is, a man who is supposed or reputed to be the biological father of a child born to a woman to whom he is not married, or who claims to be the father of such a child, to assert his entitlement to custody of or visitation rights with the child or children who are subject to his claim of fatherhood.

While many courts have in recent years adopted a more expansive approach to the rights of putative fathers, a putative father attempting to obtain custody of or visitation rights with a child by bringing a legal action will face a number of difficulties. In some places what is called a presumption of legitimacy arises when a child is born to a mother who is married, under which the mother’s husband is presumed to be the legal father of the child, and the actions of a husband in caring for and supporting the child may buttress such a presumption. Where the putative father’s dispute is with the mother of the child, such as in the case of termination of a non-marital cohabitation, the comparative fitness of the two to be awarded custody will often be judged by the same criteria that would be used by a court in the case of a custody dispute arising in a divorce action. The conduct of the parties, including such things as the extent of the putative father’s attempts to establish and maintain a parental relationship with the child, will also be considered by a court deciding such a dispute. The overriding principle that will govern a court in all such cases is that the disposition it makes will be in the best interests of the child.

The structure of family law in the United States, including the legal principles dealing with the rights of putative fathers, has developed out of the separate legal systems of each of the states, with an overlay of decisions by the Supreme Court of the United States covering constitutional issues related to child custody. The legal standards governing the rights of putative fathers in child custody proceedings will thus vary from state to state, and will be found in state statutes related to family law and in the decisions of courts on family law issues.

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