Family Attorney

The courts, which have been granting more parental rights to fathers, are expanding their definition of paternity to include unmarried fathers who have traditionally been locked out of their children’s upbringing.

The courts, which have been granting more parental rights to fathers, are expanding their definition of paternity to include unmarried fathers who have traditionally been locked out of their children’s upbringing.

In an era of rapid changes in family law, courts have shown concern that laws denying parental rights to unwed fathers may be unconstitutional if they discriminate on the basis of marital status.

In the process, assumptions about the legal definition of fatherhood have begun to crumble. In several states judges have found ways to skirt the ancient legal presumption, enshrined in state laws, that a woman’s husband is the father of her child. Taboo Is Weakening

But unwed fathers who want to take responsibility for their children still stand on shaky legal ground. In almost all states laws setting forth the rights of parents have no provisions for unmarried couples, so fathers of illegitimate children must go to court armed with blood tests or other evidence of paternity to gain parental rights. In California unmarried an father is not even entitled to a hearing to establish his paternity. The Supreme Court has highlighted the issue this session by agreeing to hear two cases in which unwed California men are seeking visitation and custody of their children.

Experts on family law say the weakening of illegitimacy as a social taboo has prompted lawmakers and judges in lower courts to grant new rights to unwed fathers. In part this trend is part of a larger movement toward giving ‘’legitimate'’ fathers broader rights to custody, visiting, naming and passing on inheritances. But the experts say that two double standards still prevail: women have more parental rights than men and married men have more parental rights than unmarried men.

‘’There is no state in the nation that would deprive an unwed mother of her child, but a lot of states still deprive the unwed father,'’ said Ronald K. Henry, a lawyer in Washington. ‘’An unwed father is often treated as a constitutional stranger to his children simply because of his marital status.'’ Wisconsin Breaks Ground

State laws require biological fathers who are called upon to pay child support to do so whether they are married to the mother or not. Advocates for legal reform argue that the law should compensate fathers for this responsibility by offering them more ready access to custody and other child care privileges.

This summer Wisconsin passed a groundbreaking law that permits unwed fathers who sign affidavits of paternity to assume parental rights for their children.

‘’This law is based on the notion that most men, if the opportunity were there, would voluntarily place their name on the affidavit,'’ said Thomas Loftus, speaker of the Wisconsin Assembly, who is the author of the legislation. ‘’The law is designed to give every child in Wisconsin the legal right to a father.'’

Such a law would have helped settle a dispute that arose this fall in Providence, R.I., where the mother of a 2-year-old girl was denied a birth certificate because she refused to give the child her estranged husband’s surname. The mother, Betty Virella, and the girl’s biological father, James Aponte, both wanted to give their daughter Mr. Aponte’s last name, but the state would not issue such a birth certificate because Ms. Virella is legally married to someone else. The state agreed earlier this month to issue the birth certificate, although it did not recognize Mr. Aponte as the father. ‘A Step or Two Behind’

State officials argue that they may regulate the selection of a child surname for purposes of keeping records of vital statistics, preventing fraud and promoting marriage and family life. Opponents of such regulations call these arguments outdated and say that computers have created ways to keep track of people without reliance on paternal surnames.

More : query.nytimes.com