Paternity and Parental Rights of an Unwed Father

by Apr 23, 2021Child Custody0 comments

In Ohio, it is determined that paternity between an unwed mother and child is established by proof of her having given birth to the child, but unwed father’s do not have that same paternity determination upon the birth of the child or any parenting rights whatsoever.  

A man is presumed the natural father of a child only if the man and child’s mother are or have been married to each other, and the child is born during the marriage or born within three hundred days after the marriage has terminated by death, annulment, divorce, dissolution or after the man and the child’s mother separate pursuant to a separation agreement.  An additional circumstance in presuming the unwed father’s paternity is if before the child’s birth, the father and mother attempted to marry each other in a marriage that was solemnized in compliance with the law of the state in which the marriage took place, but the marriage is declared invalid or if:

  1. The marriage can only be declared invalid by a court and the child is born during the marriage or within three hundred days after the termination of the marriage, by death, annulment, divorce or dissolution; or
  1. The attempted marriage is invalid without a court order and the child is born within three hundred days after the termination of cohabitation between the man and woman.
Kirkland & Sommers Father's Rights

In order for an unwed father to establish paternity, the presumed father would first, have to establish clear and convincing evidence, which includes genetic (DNA) testing of the child and the alleged father and/or an acknowledgment of paternity.   (It should be noted that a man alleged or alleging himself to be the child’s father, is not eligible to file an action to establish paternity if the man was convicted of or pled guilty to rape or sexual battery, the victim of the rape or sexual battery was the child’s mother, and the child was conceived as a result of rape or sexual battery.)

In the event the natural mother of the child does not agree to genetic testing of the child, the unwed father will need to seek the court’s intervention for an order requiring the genetic testing, by filing a motion to establish paternity.  Once the court orders genetic (DNA) testing, and after the results come back that the presumed father is the natural father, the natural father still has no parental rights or visitation/parenting time rights to the child.  In order to establish parental rights, including parenting time with the child, the natural father will need to file an action with the court to establish parental rights and parenting time.

   After receiving confirmation of paternity from the court, the determined father can then seek parental rights and parenting time with the child, by filing a motion.  The motion for parental rights and parenting time will not be a quick process, as the court has to determine the best interest of the child and not the best interest of either parent.  In determining the best interest of the child, a guardian ad litem will be appointed.  

Since the motion for parental rights/parenting time is a process that could take months to complete, the punitive father will want to file a motion for temporary interim parenting time.  In considering punitive father’s motion for temporary interim parenting time, and in the event the parent/child relationship has not already been established, the court will need to consider if the putative father is listed on the birth records, carries the putative father’s last name, or there has been a clear pattern of involvement to establish the parent/child relationship. 

The guardian ad litem is an integral part of any request for parental rights and parenting time, in that the guardian will interview mother, father, child and any other persons that have an interest in the child.  The guardian may also inspect the home of each parent, the neighborhood and school.  After the guardian conducts thorough interviews and does any investigation necessary for the determination of the best interest of the minor child, the court will review the report submitted by the guardian ad litem.  The court will then consider the contents of that report, prior to issuing any order for parental rights and parenting time.

Once the guardian ad litem has issued the report that demonstrates the best interest and welfare of the child and recommendations for the parenting time and parental rights of the father, the court will make the determination for the father’s parenting time and rights.  It should be noted that although the guardian ad litem’s report and recommendations is considered by the court, it is not the ultimate determinative factor in the process.  The court does consider all aspects presented in the father’s request, in addition to the guardian ad litem’s report.

Unwed father’s need to be aware that obtaining parental rights and parenting time is a process that does not happen overnight.  An attorney representing the father, is a must-have, if the father wants the most rights and as much parenting time as he can possibly obtain.  Our firm can assist you with the process of obtaining parental rights.  We have a staff of five attorneys that only practice in divorce and family law.  We don’t want a single unwed father to miss time with their child.  Call Kirkland & Sommers for a free consultation.