Unmarried fathers: invest in an attorney to protect your relationship with your child

Posted Sunday, May 10th, 2020 by Gregory Forman
Filed under Not South Carolina Specific, Of Interest to Family Court Litigants, Visitation

Contemporary culture appears to have lost its understanding of the historic linkage between marriage and paternity. In the time before genetic-based paternity testing (basically before the mid-1990’s) there was no way to be certain who the biological father of any particular child was. Marriage, and the presumption that a child born of a marriage was the husband’s child, was a method of binding men to children. This presumption was based on never-fully-accurate notions of female sexual virtue and that marriages were intended to be “fruitful.” Still it was a valuable fiction. In contrast, for children born outside of a marriage, paternity was never assumed. As the old folk saying went, “mother’s baby; daddy’s maybe.” It wasn’t until the mid-20th century that American law even developed paternity rights and obligations when a child was not born into a married family.

While the culture may have forgotten the basis of these historic presumptions, these presumptions remain embedded in the law. A child born of the marriage is legally the child of both spouses (even when, as in same-sex marriages, that is a biological impossibility) and both spouses have equal rights to custody of that child. In contrast, a child born outside of a marriage is in the sole custody of the mother and any rights a man might have to that child are purely in the mother’s discretion until that man establishes legal paternity–at which point he gains an equal presumption on the right of custody to the child.

According to a 2015 United States Department of Agriculture report, “Middle-income, married-couple parents of a child born in 2015 may expect to spend $233,610 ($284,570 if projected inflation costs are factored in) for food, shelter, and other necessities to raise a child through age 17. This does not include the cost of a college education.” Yet I encounter numerous fathers every year who engage in text message flame wars or law enforcement involvement with their baby mamas because they will not invest the funds required to obtain a judicial order of paternity and visitation/custody. Given the cost of raising a child, investing the $3,000 to $4,000 (my typical initial retainer for a visitation case) to remove complete control of one’s relationship with one’s child from a hostile co-parent is one of the best investments one can make.

As long as a father is realistic–not seeking joint or primary custody of a child who has never lived with him when the mother is fit–and the mother not unduly resistant, I can often obtain a final order giving that father autonomous visitation rights and access to the child’s medical and educational providers within the budget of that initial retainer. Even in cases in which the mother is unduly resistant, I have rarely incurred an attorney fee in excess of $15,000–and typically those unduly resistant mothers are required to reimburse a portion of my fee.

Raising a child is an expensive undertaking. For unwed fathers stressed that their relationship with their child is subject to the whims of a hostile mother, obtaining an order of paternity and visitation is an excellent investment. It certainly beats flame wars and police involvement.

One thought on Unmarried fathers: invest in an attorney to protect your relationship with your child

  1. Kids need both parents. Period. I encourage father (and mothers) to remember that and to do whatever is necessary to protect the child’s right of access to both parents. My biggest frustration in this case: text wars. That war doesn’t accomplish anything other than to inflame everyone while not facilitating the child’s basic need.

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