Putative Father's Right to Custody vs. Non-Parent

Recent years have witnessed a number of changes in the nature of marital and other domestic relations in the United States, with a concomitant modification in public attitudes toward such things as the status of children born outside of marriage. These changes have been accompanied by an evolution in the way in which the legal system views a number of issues related to family law. One such group of issues concerns the right of a putative father, that is to say, a man who is supposed or reputed to be the father of a child or children born to a woman to whom he is not married, or who claims to be the father of such a child or children, to assert an entitlement to custody of or visitation with such a child or children.

A putative father's child custody action (excluding from consideration actions against the child's mother or the mother's husband, which will raise different issues) will generally be brought against either a relative of the mother, adoptive parents or an adoption agency that seeks to facilitate adoption of the child, or a state agency that is attempting to terminate the putative father's parental rights. Many courts will accord a putative father what is called a presumption in his favor, taking as their starting point the premise that the biological parents of a child should have rights to custody of the child that are superior to those of strangers unless the parents are shown to be unfit to care for the child. The extent of the putative father's attempts to establish and maintain a parental relationship with the child and to provide support for the child prior to his assertion of a right to custody will be taken into account in such cases. In a putative father's child custody action against a third party, as in all disputes over child custody or visitation, the court will be guided by the overriding principle that its decision must be in the best interests of the child.

The structure of family law in the United States, including the legal principles dealing with the child custody and visitation rights of a putative father, has developed out of the separate legal systems of each of the states rather than out of a single unified body of federal law, with an overlay of decisions by the Supreme Court of the United States on constitutional issues related to child custody disputes. As a result, the legal standards governing child custody actions by putative fathers against non-parents will vary from state to state, and will be found in state statutes on family law and in the decisions of courts related to family law issues.