Rights of Fathers of an Unborn Child

Updated May 7, 2024
6 min read
Rights of Fathers of an Unborn Child

Expecting a child is an exciting time for both mother and putative father. However, while the mother-to-be has legal rights over a child even during pregnancy, the father-to-be’s rights are not as immediate.

For this reason, fathers may wonder what their legal rights are over their unborn children and how best to protect them. In this guide, discover your rights and responsibilities as a father so that you can support your child from the very beginning.

What Rights Does a Father Have to an Unborn Child?

From a legal perspective, an unwed father has very limited rights over an unborn child. In such circumstances, the father is called a “putative” father. “Putative” here means “eputed” or “alleged” and is used to describe the potential or alleged father until legal paternity is established.

The main reason for the limitation of parental rights is that paternity can only be established after the child is born, and before the child’s birth, fatherhood can only be presumed.

However, the requirements vary from state to state, and you must engage an attorney to help determine the extent of your rights. For instance, in states like California, Texas, and Florida, fathers have varying degrees of the right to receive notification of pregnancy and the right to participate in an adoption process.

Unmarried fathers’ rights

The first thing an unmarried father should do is establish paternity over the child. Father's rights begin the moment paternity is established.

After establishing paternity, other rights include:

  • The right to custody and visitation — An unmarried father who can demonstrate that they can provide a safe and conducive environment for their child can seek custody and visitation through the court.

  • Register as a putative father — Some states have a putative father registry where unmarried fathers can register and receive notifications if the mother decides to put up their child for adoption.

Abortion

In 2022, the Supreme Court overturned the Roe v. Wade case in favor of Dobbs v. Jackson Women’s Health. Since 1973, Roe v. Wade has protected women’s right to abortion in the U.S.

According to current law 2023, over twelve states, including Idaho, Oklahoma, and Texas, have a total ban on abortions. In eight states, including Utah, Indiana, and Arizona, the bans remain on hold due to court petitions challenging them. Meanwhile, in New Hampshire, Virginia, and New Mexico, abortion remains accessible but without any laws protecting a woman’s right to procure an abortion. For thirteen states, including Montana, Colorado, and Kansas, abortion remains legal and protected by state laws and the Constitution.

In states where abortion is protected, presumed fathers do not have the right to veto a woman’s right or decision to get an abortion. In fact, according to the case of Planned Parenthood vs Casey, a mother does not have to notify a putative father of her decision to have an abortion. On the flip side, it is essential to note that fathers do not have the right to opt out of the financial responsibilities of raising a child, even if a father did not want a child and would have preferred the mother to have an abortion. Opting out of financial responsibility is not an option for fathers, and courts enforce this to protect the child’s welfare.

Medical care

The Health Insurance Portability and Accountability Act (HIPAA) has firm privacy rules preventing healthcare providers from sharing medical information with anyone else if the patient doesn’t want it. HIPAA legislation also regulates the pregnancy cases of unwed couples.

If you are the biological father of an unborn child, you must get the mother’s permission to view any medical records about the child. However, showing that you are willing to support your unborn child’s medical care can help you prove your parental rights once the child is born.

Birth

The mother has the right to deny anyone’s permission to support her in a delivery room. If you are unwed, you do not have the right to participate in your childbirth unless the mother gives you explicit permission. Nevertheless, supporting the pregnant woman can go a long way toward building your custody case.

When a child is born, unmarried fathers can take parental leave like mothers. According to the Family and Medical Leave Act (FMLA), you can take unpaid and job-protected 12-week family leave for birth or adoption care if you meet specific requirements as an employer or employee.

Adoption

An unmarried putative father of an unborn child has limited or no legal rights to prevent an adoption, depending on the circumstances. But as stated earlier, the first step should always be establishing paternity.

Further, 33 states, including Alabama, Florida and Maryland, have a putative father’s registry, where the putative father can register with the state and receive notification in case the mother decides to put the child up for adoption. Upon receiving the news, the putative father can establish paternity after the child is born and seek custody or assert their parental rights once found to be the child’s biological father.

Custody

When parents separate or divorce, they may need to establish a custody and visitation arrangement. Custody relates to the legal right to make decisions around the child’s upbringing, while visitation is about the right to spend time with the child. There are four forms of custody:

  • Legal custody –– Grants one or both parents the right to make decisions concerning the child’s upbringing.

  • Physical custody –– Relates to decisions about where the child will live and responsibility concerning their day-to-day lives.

  • Joint custody –– Grants parents equal decision-making rights over every aspect of the child’s welfare and needs.

  • Sole custody –– Grants one parent the responsibility of making decisions according to the child’s best interest.

On the other hand, there are three types of visitation rights:

  • Unsupervised visitation –– Gives the non-custodial parent the right to spend unsupervised time with the child.

  • Supervised visitation –– Requires that a court-appointed third party be present during visits between a non-custodial parent and the child.

  • Virtual visitation –– Allows the non-custodial parent to communicate and engage with the child through video or other electronic means.

Parents can make a custody (parenting plan) agreement themselves or with lawyers’ assistance. If parents cannot negotiate, they can rely on a court that will resolve the custody matter and set a visitation order.

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The judge will consider the child’s interests and who he or she wants to live with based on the child’s relationships with each of the parents. Age, parents’ living conditions, and work schedules may also affect the court’s decision about custody.

Whenever possible, courts prefer it when parents share custody and decision-making responsibilities. But occasionally, one parent can be given sole custody or have greater visitation time than the other. While making such choices, courts may also consider the child’s desire.

Warning

It’s important to remember that custody and visitation plans might change on the road if circumstances change or one parent requests a change. But, if a parent has a history of domestic violence or substance misuse, custody and visitation rights may be restricted or denied to them.

How to Protect Your Rights as a Father?

There are some efficient ways of safeguarding your father’s rights when your ex-partner is expecting your child.

Before the child is born

If you are a putative father and seek to protect your rights before the child is born, consider the following options:

  • Communicate with the mother — Communicate and cultivate a positive co-parenting relationship. You may engage each other on issues such as expectations for parenting roles and responsibilities or develop a custodial and visitation plan.

  • Establish paternity — Do it early by signing a voluntary acknowledgment of paternity form or other available means. With this, you can assert your rights as the child’s father and seek custody and visitation.

  • Seek legal advice — Especially from a qualified family law attorney to understand your legal rights and options as a father, including the possibility of seeking joint custody or sole custody.

  • Maintain a record of your involvement — Keep records of any financial or emotional support you provide to the mother during the pregnancy, as this can help establish your involvement and commitment to the child.

  • Attend prenatal appointments — If the mother is open to it, attending prenatal appointments can help show your involvement and interest in the child’s well-being.

At birth

The best way to protect your rights as a father is to get a legal paternity test. Proof that you are the biological father does not automatically give you rights for custody or visitation. However, it can provide you with the legal grounds to make decisions regarding the care of your child, such as medical treatment immediately after the child is born or visitation.

After the child is born

Consider the following if you seek to protect your rights after the child is born:

  1. Establish paternity — If you have not already done so, it’s essential to establish paternity as soon as possible. You can do this by signing a voluntary acknowledgment of paternity form, a DNA test, or other legal paternity actions. Once paternity is established, you can seek custody and visitation rights.

  2. Create a parenting plan — Work with the mother to create a plan outlining each parent’s responsibilities and visitation schedule.

  3. Seek legal advice — It’s a good idea to seek legal advice from a qualified family law attorney to understand your legal rights and options as a father, including the possibility of seeking joint custody or sole custody.

  4. Pay child support — If you are required to pay child support, it’s essential to do so promptly and consistently. Failure to pay child support can have negative legal and financial consequences.

  5. Be involved in the child’s life — It’s essential to be involved in the child’s life by attending school events, doctor’s appointments, and extracurricular activities. Involvement helps demonstrate your commitment to the child’s well-being and strengthens your custody and visitation rights case.

Conclusion

Overall, as the unwed father of an unborn child, you should do what you can to maintain a healthy and positive relationship with the mother of your child. Remaining amicable builds or deepens trust and may ease establishing parental rights.

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Frequently Asked Questions

Can a mother deny a father access?

It depends on the circumstances. The general rule is that both mother and father have equal custody and visitation rights over a child. However, suppose the mother is the primary caregiver and the father is yet to establish paternity or is abusive or poses a safety risk to the child. In that case, a mother can deny access. Otherwise, if the father has established paternity and there is no valid reason for the mother to deny you pass, you have the right to seek custody and visitation through court action.

Can I take a baby from the mother?

No. Taking a child away from the mother without legal permission is considered parental kidnapping or abduction, a severe crime. Suppose you are concerned about the welfare of the child. In that case, it is advisable to work with child protective services or other legal institutions to establish paternity and get custody or visitation.

Can a father prevent an abortion if he wants to keep the child?

Fathers do not have the legal right to stop a woman from having an abortion. The law recognizes that women have rights over their bodies, including the right to have an abortion. However, working with an attorney on such matters is essential since the law on adoption is constantly evolving.

Does a father have rights to an unborn child?

During pregnancy, the law considers the mother to be the primary decision-maker regarding the welfare of the unborn child. However, in some states, a father can establish paternity by signing a voluntary acknowledgment of Paternity and support the mother to the extent that she welcomes. After childbirth, a father can seek custody and visitation rights.