Unmarried Dads matter too

A new ruling in Arizona marks a little-noticed step forward for paternal rights

I’m guessing that not many people paid attention to In re Termination of Parental Rights as to M.N., a new ruling from the Arizona Supreme Court with regard to paternal rights. Your news feed likely contain other content. But the case marks a big step forward in terms of securing and clarifying the rights of unmarried fathers in the state.

Arizona takes a step

The case leading to the decision involved a child being given up for adoption, against the wishes of the father. As the Court’s summary explains:

Mother initially identified her boyfriend as the only potential father. After the baby was born, the actual Father went to the hospital seeking to establish his paternity by a blood test but was not allowed to do so. Mother and her boyfriend agreed to a private adoption, and the adoption agency filed proceedings to terminate parental rights. Eventually, Mother identified Father as a potential father and a subsequent blood test confirmed that he was the father. However, the superior court terminated his parental rights because he failed to file a notice of a claim of paternity with the putative fathers registry.

The details of this case highlight the challenges facing family law in dealing with unmarried parents (in marriage, paternity is presumed by law). Who is to say who the father is; the mother, the father (or possible father), a DNA test?

There are two ways for unmarried fathers to be identified as such in Arizona:

1. Mothers identify the “potential” father, or fathers, of the child, and the father can file a claim for paternal rights (including being able to object to an adoption).

2. Fathers list themselves on the “putative” fathers registry, or lose parental rights.

The system was, to put it in technical terms, a hot mess. Many fathers ended up without legal rights as a result. As the press release describing the decision state:The Court

The Court noted that the potential fathers and putative fathers statutory classifications were adopted at different times and involve different rights and responsibilities.

The decision in In re Termination of Parental Rights as to M.N. removes the need for fathers to register on the “putative” registry if they are listed as “potential” fathers. This is an important clarification for fathers in the state.

Of course, it will still be difficult for many fathers. And the need to protect mothers, and perhaps the children too, have to be counted in the balance. There are still questions over who gets to determine whether a man is a potential father or not; that remains entirely in the power of the mother.

An unfair dual system of family law

Kathryn Edin and Timothy Nelson write in their book Doing the Best I Can: Fatherhood in the Inner City:

Virtually every legal and institutional arrangement governing these fathers’ lives tells them that they are a paycheck and nothing more. At every turn an unmarried man who seeks to be a father, not just a daddy, is rebuffed by a system that pushes him aside with one hand while reach- ing into his pocket with the other.

The laws governing family life have simply failed to keep pace with society. When parents are married, their rights and responsibilities to their children are clearly defined. If they divorce, there is a legal apparatus in place to determine custody arrangements, visitation rights, and financial obligations. of course there is often conflict between divorcing couples, but at least they each have legal standing with re- gard to their children. And in recent decades, family laws have shifted in a more egalitarian direction toward divorce. Courts are now obliged to treat mothers and fathers fairly in determining custody, and the usual legal standard is now the best interests of the child or children.

The problem is that there are no similar laws for unmarried parents. In every U.S. state, an unmarried mother is the presumed sole custodial parent. Unmarried fathers must first prove paternity and then petition for visitation and custody. Regardless of visitation rights, however, unmarried fathers will typically be obliged to pay child support, often at levels that low-income fathers in particular struggle to meet.

Divorcing couples typically work out their arrangements as part of a single process. But for unmarried parents, child support payments are adjudicated separately from custody and visitation rights.

Married fathers are seen as three-dimensional beings. Unmarried fathers are seen as walking ATMs.

As one struggling father told Tim Nelson:

Whatever I produce, I give up. I try to be the best dad I can, afford the best things that I can, even at the sacrifice of myself. [I] pray and hope things change [but I’m] tired of being at the bottom so long that you can’t see the top no more.

Child support payments should be set with greater sensitivity to a father’s ability to pay, and considering their non-monetary contributions, including the direct provision of care for their children. Oregon, for example, has a “parenting time credit” that reduces child support pay- ments made by a noncustodial parent if they spend more time caring for their children.

The long run goal ought to be to integrate child sup- port decisions for unmarried parents into the legal process for deter- mining custody and visitation arrangements. Edin and Nelson again:

If we truly believe in gender equity, we must find a way to honor fathers’ attempts to build relationships with their children just as we do mothers’—to assign fathers rights along with their responsibilities.

A better way for family law

There’s also a better legal way forward. Over at AIBM, we’ve published an important piece, “How family law undermines fatherhood, and how to fix it” by top legal scholars June Carbone and Clare Huntington. As they write:

The pattern of weakening paternal ties to children after a break-up was once true of divorcing families too. But a revolution in family law has remade the separation process, encouraging shared custody, mandating parental education, designing parenting plans that accommodate varying parental needs, providing counseling and other services, and making available alternative dispute resolution techniques such as mediation and custody coordinators.

These services, however, are unavailable to those who do not go to court; and unmarried couples typically dissolve their relationships without any judicial involvement at all. Moreover, to the extent that unmarried fathers, particularly those without college degrees, end up in court, it is most commonly because of a child support proceeding, often one initiated by the state. These proceedings affect 20% of American children, with Black children twice as likely as white children to be the subject of such child support lawsuits.

Carbone and Huntingdon describe some possible solutions (and in greater depth in their article in the Columbia Law Review, on which the AIBM piece is based). One idea they highlight is to support more community law centers. These sound worthwhile for sure, but there’s also plenty of work to be done on the policy front too, in terms of modernizing family law and ensuring fair child support systems. As they conclude:

Family law is fueling the class gap in family life, which is damaging the most economically vulnerable communities, weakening relationships between children and fathers, and failing millions of men. It’s time for reform.