Parental Authority

I observed two family law attorneys discuss when an  unwed father is able to exercise parental authority. 

When a married woman has a child then by law both mommy and daddy have the exact legal authority over the child (well, actually Dad has more authority but I will save that for another discussion).  If they split up, they still exercise equal authority until a court says otherwise.  When an unwed mother has a child, by law, no father is placed on the birth certificate (unless Mom and dad both agree otherwise) and therefore Mom has all the legal authority.

I have always been taught that an unwed father can only assert parental authority over a child in two ways: 1) by court order; or 2) the mom consents to having the father placed on the birth certificate.

Two family law attorneys were arguing and one asserted that when a man signs an acknowledgement  of paternity then he has as much right to the child even without being placed on the birth certificate (remember, Mom still has to consent to Dad being on the birth certificate or Dad has to go get a court order).  Essentially, the attorney argued that once the Dad signs the acknowledgement then it was a matter of time before the birth certificate could be modified. 

Support Enforcement often requires the parents to sign an acknowledgment before collecting child support.  The Dad in turn has to take the acknowledgement to get a court order  to be placed on the birth certificate (because moms don’t usually agree to amendments to the BC because it gives the Dad parental authority).  GOING TO GET THE ORDER IS THE EXPENSIVE PART.  This is the primary reason why so many unwed fathers don’t get more rights because they have to go to court to force themselves onto the birth certificate. 

This is important because the attorney was suggesting that unwed fathers have equal rights to the child the moment that the acknowledgment is signed…..even without any further action in court.  Many women sign the acknowledgment thinking that is what they have to do to get child support without giving Dad parental authority.  Well, not according to at least one family law attorney.  He says signing the acknowledgment grants a Dad the same right as being on the birth certificate….interestng.  This would certainly be contrary to what virtually every unwed father is told when he is dragged into court for child support and told he has to adjudicate his legal rights to the child separately.  I have always preached that when you go to court for child support to make sure you get the judge to order that you be placed on the BC.  Though the attorney may be right, I think it is still safe to get added to the BC just in case.  A BC with my name as Dad sure looks a lot more solid than an acknowledgment. to lay persons (like cops, principals at a school, etc.)

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10 Comments

  1. I think this is one place where the federal standard should prevail. From their standpoint, if both parents certify the dad’s the dad…….he’s the dad and should be put on the birth certificate.

  2. This is from the Woman’s Hospital in Baton Rouge, put out to advise women of their rights – (check a):

    Child Born Outside of Marriage: If the child is born outside of marriage and unacknowledged at birth as provided in Civil Code Article 180, the child’s name must be recorded as the mother’s maiden name and the father’s information must be left blank, except:

    a.) An Acknowledgment of Paternity affidavit executed by the mother and the biological father will suffice to add paternity information. The surname of the child may be changed to the surname of the biological father if the mother agrees or, if both the mother and the biological father agree, the surname of the child may be the mother’s maiden name, or a combination of the surname of the mother and the surname of the biological father, in either order [R.S. 40:34B.(1)(a)(iv)],

    • evilpassio: Once a BC is issued however, all parties must sign documents to have it amended. In other words, if Mama refuses to sign the documents to have the BC amended later then Daddy has to go to court to have the BC changed. The information you are quoting presumes Dad signs the AoP prior to the BC being issued.

      • If dad is low income, this can be done for free or very reduced cost by filing pauper status (up to 200% of federal poverty guideline I believe, calculated based on family size). Dad can also try to do an end-run around the process by asking the DA to name him the father (which can be done without DNA if the father agrees). In this case, I don’t believe the court process has to be done, because the DA can supersede it. The “point” may be to get child support from dad, but the effect will be the same, without the cost of the filing.

        • True, but pauper status only postpones payment of filing fees….still gotta pay the attorney. I know I keep talking about the court (during child support proceeding) initiated by the State (which would be in juvenile court) ordering that the child’s name be placed on the birth certificate but I wonder if that falls outside the jurisdiction of the juvenile court. Further, can the juvenile court order that a father to be placed on a birth certificate if the mother is not a party to the proceedings (remember, the State is suing for CS..not mama).

  3. uh uh k
    McKinley v. McKinley, 631 So. 2d 45 – La: Court of Appeals, 2nd Circuit 1994
    Only a father may formally acknowledge an illegitimate child by having his name placed on the child’s birth certificate. LSA-C.C. Art. 203; Jordan v. Taylor, 568 So.2d 1097 (La.App. 4th Cir.1990). Thus, the McKinleys’ act of having Paul’s name recorded on Justin’s birth certificate is without legal effect. Therefore, for purposes of this custody dispute, Paul must be considered a nonparent.

  4. In re Adoption of BGS, 556 So. 2d 545 – La: Supreme Court 1990

    When the identity of the father of an illegitimate child is not indicated on the birth certificate, the mother’s act of surrendering the child for adoption “terminates all parental rights whatsoever,” except for his standing to oppose the adoption at the best interest hearing. La.R.S. 9:422.8. Moreover, the father may not place his name on the birth certificate without the mother’s consent. La.R.S. 40:34(B)(1)(a)(iv) and (h).

    I know these are adoption cases but it gives guidance. As far as having jurisdiction I would say they would have unless something is pending in the district court. I don’t think Juvi’s jurisdiction is exclusive but rather concurrent in this particular set of circumstances.

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