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Putative Father’s Standing to Seek Custody of a Child


Putative Father’s Standing to Seek Custody of a Child


The changing nature of marital and other domestic relationships in the United States has been reflected in a corresponding evolution in the way in which the legal system deals with issues related to family law. One such group of issues concerns the child custody rights of a putative father, that is to say, a man who is supposed or reputed to be the 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.


A putative father who wishes to establish his right to custody of or visitation with a child or children will in many cases have to go to court in order to do so. The initial hurdle a putative father will face in such a proceeding is that of establishing standing, which is generally defined as a showing by the party who brings a legal action that he or she has a sufficient interest in the subject matter at issue to be permitted by the court to maintain the action. While courts have in recent years taken a more liberal view of the standing of putative fathers to bring suits seeking child custody or visitation rights, a number of obstacles may stand in the way of a putative father who seeks to bring such an action. If the mother of the child is married to another man, some courts may rely on a presumption of the legitimacy of children born during a marriage to deny a putative father standing to assert that he rather than the husband of the mother is a child’s father. The language of some state statutes may also be deemed to bar standing in a putative father to bring such an action. The conduct of the parties to such an action, including such things as the willingness of the mother’s husband to provide care and support for a child (in a case where the presumption of legitimacy is for some reason not conclusive), unreasonable delay in the bringing of the putative father’s suit, or the prior failure of the putative father to attempt to establish a parental relationship with or assume parental responsibilities for the child, may also come into play.


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 rather than out of a single unified body of federal law, supplemented by a number of decisions by the Supreme Court of the United States on constitutional issues that have arisen in paternity-related cases. As a result, the legal standards governing the child custody rights of putative fathers will vary from state to state, and will be found in state statutes on family law and in the decisions of courts related to paternity and child custody issues.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.


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