Tag: Father Forced Paternity

Father Must Share Custody with Mother’s Boyfriend

Posted by Ron Kauffman on

In a custody decision that will surprise many family lawyers, a Pennsylvania court ordered the natural father of his child to equally share custody of his child with the Mother’s boyfriend. It is a decision that is putting the nature of parental rights back in the news. Will the natural father’s appeal be granted?

Custody Boyfriend

Loco Parentis

The child, S.J., was born in April 2020. At the time, the mother was in a relationship with a man named Kareem Smith. At the time of S.J.’s birth, Kareem thought he was the biological father.

Then the mother died in May 2021, and her boyfriend continued to act as the father.

Victor got a paternity test which confirmed that he, not Kareem, was the biological father of S.J. The Mother’s boyfriend, Kareem, was merely acting in loco parentis – a Latin term meaning “in place of a parent.”

About a month after the paternity test results showed he was the natural father, Victor filed an action for sole custody of S.J. against Kareem. A custody hearing was held in February 2023.

Victor’s position was that Kareem was effectively an interloper who was interfering with Victor’s rights as the parent.  The family court held a few proceedings to introduce Victor to S.J.  Afterwards, the family court entered a temporary order.

The temporary order determined that Kareem was a psychological parent of the child, or was in loco parentis status because of his involvement as the child’s perceived father for more than a year. The court then awarded shared legal custody and shared physical custody on a 50/50 basis to the two fathers.

The natural father appealed.

Florida De Facto Parents

I’ve written about parental responsibility in Florida before. Florida uses the parental responsibility concept. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends.

The test applied to determine parental responsibility is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

Florida courts have considered the role of loco parentis, or psychological parents, like grandparents for instance, in a child’s life. Generally, in a dispute between a natural father and de facto parents, custody can be denied to the natural father only if there is clear and convincing evidence that the natural father abandoned the child, or is unfit, or placing the child with the natural father will be detrimental to the child’s welfare.

Heartbreaker in the Quaker State

On appeal, the Father argued that the trial court erred granting the mother’s boyfriend shared physical and legal custody of the child when the weight of the evidence was against shared custody.

The appellate court noted that in Pennsylvania, a natural parent has a prima facie right to custody, which will be forfeited only if convincing reasons appear that the child’s best interest will be served by an award to the third party.

The appellate court found no basis for changing the custody order because the family court judge found, by clear and convincing evidence, the need for stability and continuity in the child’s life was sufficient to overcome the presumption that custody be awarded to the natural parent. Because of the child’s “need for continuity”, and the fact that the two fathers co-parented well, the court affirmed the shared custody order.

The decision of the Superior Court of Pennsylvania is here.

Father Reproductive Rights

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Paternity on Friday, July 26, 2013.

The Supreme Court’s recent DOMA decision – about the fairness in treating homosexual marriages equally under the law – got me thinking: do Fathers have equal reproductive rights?

If a woman conceives a child with a man, and she does not want to raise the child, she really doesn’t have to. And, there is nothing a man can do about it, even if he really wanted to be a father. The choice is the woman’s alone.

Women have access to contraception, abortion services, foster care services and adoptive parents. If a woman wanted not to be a mother after becoming pregnant, she can choose not be a mother at any time she wants. Even over the strong objections of the father.

This is true even after the birth of the child. Many Florida cities have a Safe Haven for Newborns program allowing mothers to leave a newborn at certain hospitals and fire stations with no questions asked.

But if a woman has a child – either accidentally or without the father’s knowledge – and the father never wanted a child, he is out of luck. Sure, he can suggest an abortion, but if the mother wants to raise the child, he will be stuck with years of child support payments.

Do men now have less reproductive autonomy than women? Should men have more control over when and how they become parents, as women do?

The New York Times recently ran an editorial about this issue:

“if women’s partial responsibility for pregnancy does not obligate them to support a fetus, then men’s partial responsibility for pregnancy does not obligate them to support a resulting child.” At most, according to Brake, men should be responsible for helping with the medical expenses and other costs of a pregnancy for which they are partly responsible.

If a woman decides to give birth to a child without getting the biological father’s consent to raise a child with her, should he be forced into legal paternity?

Not allowing reproductive rights for fathers, and forcing child custody, could lead to disestablishment cases which are not in the best interest of the child. Biological fathers may also be use violence or threats when child support orders are enforced against them, or maybe abandon the child.

There is some wiggle room. In Florida we have a disestablishment of paternity statute which men can use after they break up with the mother. However, it generally requires newly discovered evidence that the father is not the biological father of the child.

When men and women have an unplanned pregnancy, men find that the law is stacked up against them. This unequal treatment under the law may be a matter that needs to be corrected. Is it time for men’s reproductive rights?