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The Law Concerning Fathers Rights When the Child is Not Yet Born

A FATHERS INFLUENCE HAS LIFELONG EFFECTS ON HIS CHILDREN. FATHERS ARE CONCERNED CAPABLE PARENTS AND MUST HAVE ADEQUATE CUSTODY AND PARENTING TIME.

It is the father’s right to enjoy his children and it is his responsibility to provide guidance and attention to them. Child support is more than money payments, which alone do not meet the children’s needs as they grow up. Both parents are models for the children’s development.

The time and attention that fathers pay to their children is vital to their children’s happiness and development.  There have been great social and economic changes in which there is a high percentage of divorce, unwed parents and both parents working to support the family. In many situations the mother is not able to be the sole or primary caregiver nor should she be. Once the child is born, the father must be allowed to assume the duties of caring for the child on an equal basis with the mother.

Unless there is objective evidence that he cannot provide reasonable care for the child the courts will rule favorably for equal parenting time. Sometimes the mother may raise objections such as “the child is too young to have overnights,” the father does not know how to take care of a baby “. None of this is true.  However, in the face of opposition in a legal setting, the father needs skilled representation to overcome the outdated conventional wisdom supporting the idea that only mother knows best.

Fathers should not give up or settle for a limited role in their children’s lives.  In my practice, many fathers want a very active role in their children’s lives and if their goal is to raise their children we aim for that level of custody and parenting time to make it happen. The courts treat each parent as having equal rights as it is in the child’s best interest.  We handle all disputes around that basic premise which is embodied in the law

THE LAW CONCERNING FATHERS RIGHTS WHEN THE CHILD IS NOT YET BORN

The U.S Supreme Court has ruled that before the birth of a child the father’s interest in the pregnancy and the mother’s health is not equal to that of the mother’s interest in the unborn child.

The New Jersey Parentage Act does not permit the courts to make a Pre-Birth Order because the fetus is not yet a child. The father of an unborn child does not have a right to be notified when the mother goes into labor or to be present at the child’s birth because her fundamental right to privacy and reproductive activities outweigh the father’s alleged rights.  In the case of Roe V. Wade, the Court ruled that women have a fundamental right to privacy that includes the right to control their bodies during pregnancy.  The father’s interest during pregnancy is subordinate to the mothers.  During that time it is the woman who physically bears the fetus and is more directly affected by the pregnancy.  The State is cautioned against action in the pre-birth time frame that interferes with the individual rights possessed by the mother.

This too extends to a pregnant woman who takes drugs. If the baby is born addicted the hospital will report it to the Division of Child Protection and Permanency and it is unlikely that the child will be reunited with the mother without a lengthy period of rehabilitation and successful sobriety. Clearly, a baby born addicted is harmed.  If the father is identified and circumstances ensure the safety of the child he can be given custody of the child.

BIRTH CERTIFICATE

A birth certificate does not create a legal finding of parentage nor does it create rights. Thus there is no need to have the fathers name listed on the birth certificate the day the child is born. In child support matters where the parents are not married the Courts will order a paternity test. The New Jersey statutes provide five days after the child’s birth for the parents and hospital to file the certificate.

RIGHTS AND RESPONSIBILITIES WHEN THE CHILD IS BORN

Once the child is born the father’s rights concerning the child are equal to that of the mothers.  If the parents cannot agree on custody and parenting time for any reason in separations or divorce, the Court will conduct a best interest analysis. There are two kinds of custody issues- Legal Custody and Physical Custody. Most often legal custody is shared with both parents having the right to make major decisions concerning the child. Usually only in severe cases of abuse or neglect is Legal custody lost in a termination of parental rights trial due to the risk of harm because of the inability of the parent to provide a minimal degree of care to the child.  There are instances of abusive parents, but frequently the parent is abusing himself or herself with drug use. Drug addiction impairs parent’s judgment and the children are at risk because the parent is motivated to get drugs and they neglect their children.  When they are under the influence of drugs they are unable to perform properly.  Parents love their children but when they take or sell drugs including marijuana, with the children present, the children are placed in danger.

There should be no reason for a parent to give up legal custody of his/her child. As an example even if one parent is incarcerated or moves far away and will rarely if ever see the child, circumstances can change. Before any parent voluntarily gives up legal custody (and parents have done this) it should be fully discussed with a counselor, advisor or attorney.

Even in cases where a parent is considered to present a risk to the child, Legal custody is still maintained if there is a possibility of reunification after appropriate services and treatment.  The safety of the child may be ensured with parenting time restrictions and Orders for treatment and therapy.

BEST INTEREST ANALYSIS

The Court will address an application for parenting time with a best interest analysis. An application for parenting time, if not voluntarily agreed upon between the parents, is obviously a contested action. The Courts can order mediation and expert evaluations all in an effort to have the parents fully understand the impact on their child and to try to come to an agreement regarding their child. The judge will often tell the parents that the Court does not want to have to make the custody decision, that the parents should not leave this to a third party. The parents should make their best effort to cooperate with each other in making a custody and parenting plan.

The Court considers the parents ability to agree, communicate and cooperate in matters relating to the child: the parents willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse: the interaction and relationship of the child with its parents and siblings; the history of domestic violence if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents employment responsibilities; and the age and number of children.

A custody fight is an expensive unpleasant experience which negatively affects the parties and their children.  Nonetheless, litigation may be necessary if one parent refuses to share the children or tries to influence the children against the other parent. The Court can appoint one forensic psychologist or each party can choose his own. The psychologist will conduct evaluations and report on his findings. This requires several interviews. Fathers should engage in this process where there is unjustified opposition to their having custody and parenting time. There can be unproven allegations suggestive of unfitness which get aired, however as the case heads for a trial the investigations and evidence gathered through the discovery process will provide proofs. There are cases in which custody has been taken away from a parent who makes false allegations and is alienating the child.

The selection of experts recognized by the courts is vitally important. The courts do not blindly follow the expert’s recommendations, however, a thorough examination using methods and references recognized in the field must be shown as a foundation for the expert’s opinions. Courts may also interview the children. If the parties are unable to agree, there will be a trial. The Court will weigh the evidence including testimony from the parties and witnesses and will come to a decision.  This is a very costly and high stakes proceeding because the judge, not the parents is going to decide the custody issues.

FINAL RESTRAINING ORDERS

A parent who has a Final Restraining Order against him or her, for domestic violence has a greater problem getting custody and unsupervised parenting time. If the police have called DCPP during an investigation for Domestic Violence, the Court will usually wait until the investigation is over before granting unsupervised parenting time. This can take a year to complete and the parent, usually the father, is severely prejudiced during this time. It is not impossible to restore equal parenting time even in this situation but it requires persistence and commitment to the children’s well-being and demonstrations to the Court that the child will not be at risk if in the custody of the alleged perpetrator. It is best to avoid unnecessary confrontations which may lead to Domestic Violence.

A Final Restraining Order is issued after a trial based on a preponderance of evidence. This is less than ”beyond a reasonable doubt”. It is known that a parent may make a domestic violence complaint to get an advantage in custody. Many domestic violence complaints arise when parties are breaking up and custody is an issue.  It is a very emotionally charged time and a parent must be very careful not to engage in a dispute if it can be avoided.  It may be better to relinquish the child for the time being, walk away from the scene; apply to the Court for custody, parenting time and a child support Order and wait until the Court Order is obtained. If an argument occurs when the child is present the Police who arrive at the scene must call DCPP and this complicates the situation. The defense of domestic violence allegations becomes very financially costly and the Defendant is at risk for being kept out of the home, paying support and getting minimal supervised parenting time. Over time this can be changed with the appropriate applications to the Court for parenting time, but it is a hard way to achieve the goal of equal parenting.

CHANGED CIRCUMSTANCES

Whether the parties have entered into a Consent Order or a Custody Order was entered as the result of a trial, custody can always be changed based upon changed circumstances.  The best interest of the child will be the determining factor for the new custody and parenting plan. There may be very significant changes in a parent’s life even including re-marriage and hopes to move out of state. If it is shown that the child will suffer from a lack of meaningful parenting time with the remaining parent, the Court will deny the application.

CONCLUSION

The need for a child to have both parents in his life has been recognized by the Courts in New Jersey in its decisions concerning custody and parenting time. Fathers are given equal status to the mother. In many cases, the fathers are the primary wage earner but they are no longer accepting the role of seeing their children every other weekend.  If the father wants a significant role in his child’s life, the law will protect his parental rights.

This article is not legal advice. Please consult an attorney.

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