When you think of the words “mother” and “father,” what do you envision? Do you see your parents clapping together after you took your first steps? Do you see your dad tucking you into bed? Do you feel your mom’s kiss on the cheek as she leaves for work?
Much of what we believe or expect from parenthood depends on the historical view of the family. But with today’s technology, this traditional view of the nuclear family changes. Now women can get pregnant via in vitro fertilization without ever meeting their child’s father. Parents who can’t conceive on their own can hire a surrogate to carry their son or daughter during gestation.
When the genetic makeup of a child comes from someone other than his or her parents, who has legal parenting rights?
The Uniform Parentage Act of 2002 took all of the above factors into account to define each parent’s individual rights. It also explains the specific legal procedure for determining paternity and genetic testing.
We’ve created an outline of the most basic terms in this legislation, so read on to understand your obligations and legal rights as a parent.
Traditionally, the law considered the mother to be the woman who physically bore the child. Under the 2002 law, the legal definition of mother has expanded to include:
- A woman designated as an adoptive mother by a judge.
- A woman whose egg was fertilized.
- A woman who entered into a gestational agreement.
In these extenuating circumstances, the woman who carried the child does not have maternity rights under the law. If any of the above categories apply to your situation, the law protects your rights as a mother. We’ll discuss those legal rights later on in this post.
Before parenting rights became a prominent legal issue, fathers who had a child but were not married to the child’s mother could not qualify for parenting rights. Instead, all decision making ability and legal responsibilities were delegated to the child’s mother.
Today, the Uniform Parentage Act protects the rights of fathers. A legal father can include any of the following:
- Presumed father: the man who lived with the child during the first two years of life. A presumed father also includes the man who was married to the child’s mother when she gave birth whether or not the baby was his biological child.
- Acknowledged father: the man who claimed paternity over the child.
- Adjudicated father: the man designated as the adoptive or legal father by a judge, or a man determined to be the father by a gestational agreement.
- Biological father: a man who gives his consent to assisted medical reproduction.
Regardless of the legal father’s relationship with the biological mother, once he proves his paternity, the law must protect his legal rights.
Parents who have already talked to the court about their adopted or non-biological children have legal documentation confirming their parentage. However, biological parents face a more extensive process to prove their paternity.
In the event of a civil dispute, the putative father, the assumed father involved in the suit, can establish paternity in one of two ways.
First, he can sign an affidavit assuming paternity. When he gives his consent, he agrees to perform all paternal responsibilities for the rest of his life. This agreement stays in effect as long as no other man claims to have paternal rights over the same child.
If the putative father wants to escape the responsibilities outlined by the affidavit, he must prove that he is not the biological father.
Second, he can undergo DNA testing. Using DNA from the mother, the presumed father, and the child, genetic testing can determine the probability that the presumed father is the child’s biological father. The court recognizes 95% probability and above as decisive evidence that the putative father is the biological father.
Though mothers have participated in DNA testing in some cases, the mother who carried the child is typically assumed to be the biological mother, unless egg donors or surrogates were involved.
Now that you understand the legal definitions of mother and father, we’ll explain the rights and obligations that the law expects of parents.
Each parent bears the responsibility to support the child, meaning that they provide for his or her needs. In the case of divorce or separation, the court may determine that a parent owes “spousal maintenance” or child support to provide for the child.
Both parents also have the right to visit or have custody of the child. Even if the father never married the child’s mother, he maintains his visitation or custody rights if he qualifies as the legal father.
The child also has a right to all insurance, social security, and inheritance from his or her parents, so determining legal paternity can benefit the child as well.
The Uniform Parenting Act seeks to protect the rights of both children and parents, even with the recent technological changes that alter our definitions of mother and father. If you feel that you qualify for paternity rights, contact a team of legal experts to establish your parentage and make a case for your legal rights.