In Iowa, if a father’s name is not on a birth certificate, they will usually not have custodial rights of a parent, absent other action. The exception is if the mother and father are married at the time of birth. If the mother and father are married, Iowa law assumes the husband is the father.
This article will discuss other ways a father may establish himself as a parent if his name is not on the birth certificate. In this article we will discuss:
- What can the mother and father do if they agree he is the biological father?
- Is there anything a father can do before the child's birth to protect his rights?
- What can a father do after the child's birth?
- What happens if a mother marries prior to the father's rights being established?
- What if there is a termination of parental rights case against the mother?
- If the father is proven to be the biological father, is it guaranteed he will be granted paternity?
What can the mother and father do if they agree that he is the biological father?
If the parents are not married, the easiest way to establish the father’s parentage is for both parents to fill out a paternity affidavit. This form is commonly provided by the hospital, but may also be available through the Child Support Recovery Unit. The affidavit states the man is the biological and legal father of the child, and that his name will be added to the birth certificate.
However, there may be circumstances where a mother refuses to add the father to a birth certificate. If that happens, the law does not allow the father the right to have contact with the child, or to make decisions for the child (these things may still happen, but it would be entirely up to the mother). If the father is not established as the biological parent, the mother will also not be able to receive child support.
Is there anything a father can do before the child’s birth to protect his rights?
If a father is aware of a mother’s pregnancy, he can file a Declaration of Paternity with the Iowa State Registrar of Vital Statistics. This document can be filed prior to the child’s birth, up until any petition for termination of parental rights is filed. This document is usually free, and can be used as evidence in an action to establish paternity.
If you believe the mother may put the child up for adoption, filing a Declaration of Paternity is especially important. Iowa has a registry called a declaration of paternity registry. The declaration includes all the father’s relevant contact information, and should be updated upon any changes. It will also include information about the mother. The registry is confidential, but may be accessed by the biological mother, courts, and government agencies.
If the mother tries to put the child up for adoption, the parties are not married, and paternity has not been established, the state is required to check the declaration of paternity registry and notify the father of the filed adoption case. This will allow the father to intervene, request his paternity be established, and contest that adoption is in the child’s best interest.
This declaration is also important because it evidences the parent’s interest in being a father. In a United States Supreme Court case called Lehr v. Robinson, 463 U.S. 248,103 S.Ct. 2985,77 (1983), the Court held that a father’s constitutional rights were not violated when he was not given notice of his child’s adoption because he had never had any significant custodial, personal, or financial relationship with the child. If a father does not make this declaration, they risk a similar outcome. As discussed below, the father also should take other actions to try to exercise parental responsibilities.
What can a father do after the child’s birth?
If the mother refuses to put the biological father’s name on a birth certificate, or to sign an affidavit that he is the biological father, the father’s last option is to pursue a Court action. The father will file a petition to establish paternity of the child with the district court.
Blood or genetic testing may be required to determine if the petitioner is the father. The cost for the testing is paid by one or both parents. If an experienced determines that the petitioner is the biological father, the Court will likely enter an order certifying the paternity. The father will then bring the certified order to the Department of Human Services’ Office of Vital Certificates, and work with them to change the birth certificate. At that time, assuming no further order of the court, the father would have equal legal and physical custody rights of the child.
If the mother refuses to allow the child visits with the father after paternity has been established, the father would likely have to initiate a custody case against the mother. Child support payments would also begin at this time.
What happens if the mother marries prior to the biological father’s paternity being established?
If the mother marries, the father may still file a statement with the court admitting paternity of the child. If the father wishes to establish paternity solely on admission of the parties, both the mother, and the individual to whom the father is married must deny the paternity.
In Callender v Skiles (591 N.W.2d at 184, (1999)) the court held that, when a woman married another man, the putative father had a protected liberty interest in the relationship with his biological child. The Court held the Iowa Constitution could not infringe upon his interest without providing due process. The court concluded the putative father was entitled to petition the court to overcome the presumptive father’s paternity and establish his own, using the procedures of Iowa chapter 600B.
However, Callender also held a father could waive the right to challenge paternity if the parent does not demonstrate a “serious and timely expression of a meaningful desire to establish parenting responsibility.” This is an actual desire to exercise his parental rights, not to merely exercise his right to file an action with the court. Fathers in these situations should show and maintain evidence of trying to exercise parental rights with their child. This means trying to exercise the right of a parent to companionship, care, custody, and management of his children. It means something more than visiting the child at times and giving them occasional gifts.
However, the Court has distinguished cases in which the father had no knowledge he had children, or that the children was his. The Court reasoned the rights cannot be waived if the father does not know they exist.
What if there is a termination of parental rights case against the unmarried mother?
Iowa Courts held that the interest of parents in their relationship with their children is a fundamental liberty interest protected by the Fourteenth Amendment. In In re B.G.C. (496 N.W.2d at 244, (1993), the Court held that the putative father had not abandoned the child so as to permit termination of his parental rights as well.
If the father is determined to be the biological father, is it guaranteed he will be granted paternity?
It is not guaranteed that the biological father will be granted paternity. In general, Iowa Code Chapter 600B.41A allows the court to preserve the paternity of the previously-established father if the previously-established father requests that paternity be preserved, the court finds the previous arrangement is in the child’s best interest, and the established father petitions the court to terminate the biological father’s parental rights (and the court grants the petition).
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