For married fathers seeking a divorce or separation and unmarried fathers of minor children, it’s important to understand parental rights and responsibilities when it comes to the child(ren). Courts no longer assume that custody of the child(ren) should automatically go to the mother or that the mother should have the majority of the parenting time with the parties’ child(ren), with some very important exceptions.
A husband/father and wife/mother should be treated fairly, and Ohio Courts are directed to look to the best interests of the child(ren) when establishing a parenting schedule or shared/custody arrangement.
More often, couples are choosing to start their family even before marriage, or in lieu of marriage. Although it is within one’s right to choose to have children out of wedlock, it is important to understand exactly how that decision may affect that person’s parental rights and how to establish with the Court that you are the child’s “natural father.”
Under Ohio law, a man is presumed to be the natural father of a child under the following scenarios, including but not limited to:
“(1) The man and the child's mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separation agreement.
(2) The man and the child's mother attempted, before the child's birth, to marry each other by a marriage that was solemnized in apparent compliance with the law of the state in which the marriage took place, the marriage is or could be declared invalid, and either of the following applies:
(a) 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;
(b) The attempted marriage is invalid without a court order and the child is born within three hundred days after the termination of cohabitation.”
See R.C. § 3111.03 for an exhaustive list.
It is important to note that when a husband and wife “are living separate and apart from each other” and the question as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children is brought before a court of competent jurisdiction, the husband and wife “shall stand upon an equality as to the parental rights and responsibilities for the care of their children and the place of residence and legal custodian of their children, so far as parenthood is involved.” See R.C. § 3109.03. However, a father’s rights are vastly different when he has a child with someone he is not married to.
Under Ohio law, when a child is born to unmarried parents, the mother is automatically granted sole legal and physical custody of the child at birth. The mother is granted those rights at birth, regardless of whether the father was present at the child’s birth, actively involved in the child’s life, listed on the birth certificate, or in a relationship with the mother.
Unmarried fathers still have important parental rights; however, establishing and later enforcing those rights requires filing the appropriate action in a Court with proper jurisdiction with the help of family lawyers for fathers.
The first step an unmarried father must take to establish parental rights is to legally establish paternity. In Ohio, paternity can generally be established in one of two ways:
When by both parents signing an acknowledgment of paternity affidavit at or after the child’s birth, or
through genetic testing.
Without a legal determination of paternity, a father cannot establish enforceable parental rights. However, establishing paternity alone does not automatically grant rights such as custody, shared parenting, parenting time/visitation, or the right to claim the child as a dependent for tax purposes.
To obtain these rights, the father must file an action with the appropriate Court and request that parental rights and responsibilities be formally established with the help of a family lawyer. The Petition, called a Complaint to Establish Parent-Child Relationship, along with a Motion requesting parental rights, should be filed to make such determinations in accordance with the best interests of the child(ren). For a list of factors the Court considers in determining the best interests of the child(ren), see R.C. § 3109.04.
Ultimately, unless a father establishes his parental rights under Ohio law, a mother has sole custody and sole decision-making authority regarding all aspects of the child’s life, including, but not limited to, education, medical care, and religious upbringing, and the ability to relocate with the child out of state. This is why working with family attorneys like Jim Mannos, Peter Calhoun, Marietta Pavlidis and Michael John is crucial for protecting your rights. Whether you are a husband and father seeking a divorce, an unwed father enjoying regular parenting time absent a Court order or an unwed father that is not afforded time with your child(ren), it is important to protect your rights as a father and a child custody lawyer from Plakas Mannos is here to help you every step of the way. Contact us today to learn more about legal rights for fathers.
Marietta Pavlidis is a litigation attorney who focuses on family law and workers’ compensation law. Michael John is an associate attorney who also works on our Family Law Team.