Q. What are the parental rights of fathers who are married to the mother of their child?
Ohio Revised Code 3109.03 states: “When husband and wife are living separate and apart from each other, or are divorced, 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, they 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”. This means that when married parents are living in different households, and a court is asked to assign custody, visitation, or shared parenting, the court cannot give a preference to either parent based solely upon gender.
Paternity of a child born during a marriage is presumed to be the husband, until and unless proof is provided (DNA testing) that establishes that the husband is not the father. So a father of a child born during marriage to the child’s mother does not have to prove paternity, it is already presumed. If either the mother or the father wishes to challenge paternity, he or she would first have to obtain DNA test results establishing that a) the husband is not the father, b) someone else is the father, or c) both.
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Q. What are the rights of fathers who were never married to the mother of their child?
When a man fathers a child and is not married to the mother when the child is born, he has no rights until he establishes paternity. Once paternity is established, the father may then be given the obligation to pay child support, but he still has no right to time with the child until he obtains a court order giving him visitation, custody or shared parenting. If the father of the child of an unmarried female wishes to establish or determine paternity, he may:
- Acknowledge paternity by affidavit (This is commonly done at the time of the child’s birth, but can be done later at a local registrar, health department or Child Support Enforcement Agency. The mother’s consent is required, and the father is foregoing the option to have DNA testing before paternity is established). For more information about an Acknowledgment of Paternity Affidavit, click here!
- Participate in DNA testing through the child support enforcement agency to determine if he is the father of the child. DNA testing may be ordered by the local child support enforcement agency (CSEA) if the mother of the child files an application for services with the agency, if the mother receives public assistance, or if the father (or other persons entitled by statute) request that the agency establish paternity. If the DNA results are ordered by the CSEA are positive for paternity, paternity will be established by administrative order through the appropriate child support enforce agency, and a child support order will likely be made. It is important to note that while DNA testing can be done through a private company, these test results do not, by themselves, establish LEGAL paternity.
- File a complaint in court to establish parentage and/or to allocate parental rights and responsibilities. The Court can order paternity testing, and the mother’s consent is not required. Ohio law provides that one or both of the parties must first request the CSEA establish paternity, before filing a court action, but Child Support Enforcement Agencies in Ohio generally refuse to help fathers in these circumstances. Some courts require a “judicial bypass” affidavit saying that the father tried to get CSEA to help him, but many courts no longer require this affidavit.
- To read our article about how paternity can be established in juvenile court when the child is over the age of 18, but has not yet reached his or her 23rd birthday, click HERE.
- To reach how an adult child, his father, and (sometimes) the mother can cooperate to establish paternity of an adult child over the age of 18 (no age limit), in probate court, click HERE.
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Establishment of paternity does not legally entitle the father of a child to exercise parenting time with the child. Payment of child support does not legally entitle the father of a child to exercise parenting time with the child. These are common misconceptions. A court must make an order allocating parental rights and responsibilities before the father of the child of an unmarried female has the legal right to parenting time with the child. Ohio law provides that once parentage has been established, a court designating the residential parent and legal custodian of a child of an unmarried mother shall treat the mother and father as standing upon an equality when making the designation.
The law also provides that when a COURT (not the CSEA) enters a child support order, the court MUST make parenting orders regarding regular, holiday and vacation time. Although this statute does NOT require the child support payor to file a motion with the court, the safe thing to do is file the motion and get it served on the opposing party or their attorney 7 days before the COURT child support hearing. The smart thing to do would be to show up to the court hearing with a copy of the statute that requires this order. That statute is Ohio Revised Code 3119.08, and a copy can found by clicking HERE.
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Q. What is a Putative Father Registry?
A man who believes he may be the father of the child of an unmarried mother may preserve his right to receive notice of a child’s adoption by registering with the Ohio Putative Father Registry (1-888-313-3100). Even fathers under the age of 18 may register with the Putative Father Registry.
A putative father is a man who may be the father of a child, but is not married to the child’s mother when she becomes pregnant or when the child is born, AND he has not adopted the child, AND a court or child support enforcement agency has not decided he is the child’s legal father. Registration can occur at any time during pregnancy, but no later than 30 days after the birth of the child. Registration with the Ohio Putative Father Registry does not make a man the legal father of a child and does not establish paternity, but it preserves the right to be notified if the child’s mother places the child for adoption. For more information, call the Ohio Putative Father Registry at 1-888-313-3100, or click the link
For additional important information about establishing paternity, please visit the web page for Ohio Paternity Enhancement by clicking here.
Q. How can I stop the adoption of my child in Ohio?
It is important to note that registering with the Putative Father Registry and doing nothing more is not guaranteed to stop an adoption. The safest way for a father to preserve his rights is to file an action to establish paternity and parental rights at the earliest possible date, preferably BEFORE any adoption case is filed. A paternity case CAN be filed before the child is even born.
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For more information about the rights of UNMARRIED PARENTS OR NEVER MARRIED PARENTS, click the link.