Children may have non-custodial fathers because of the breakup of their parents’ marriage or because a marriage never occurred between the parents in the first place. Across time, the proportion of children in the U.S. with non-custodial fathers who were born outside of marriage has risen substantially. These children are less likely to have child support orders in place and to be more economically disadvantaged compared to the children of divorce. These children also pose special challenges to child welfare workers who seek to involve their biological fathers in the case planning process because paternity must be legally established prior to substantial work with these fathers or the fathers’ kin (Rasheed, 1999). Caseworkers included in the Urban Institute’s focus groups on kinship care described how one barrier to placing with paternal relatives was the fact that many of the fathers have not had their paternity adjudicated. Thus, paternal relatives could not be given priority without establishing their relationship to the child.
The development of best practices for involving non-marital fathers in child welfare case planning has probably been hindered by shifts in the case law across time and the varying approaches that states and counties have taken to establishing paternity. Below we briefly review what is known about these trends and patterns.
In the United States, the rights of fathers who are not married to the mothers of their biological children have shifted over time. Relatively recently, i.e., prior to the 1970’s, these fathers had few rights relative to their biological children. This situation began to change when Supreme Court rulings began to put in place some standards regarding the rights of these fathers. It was not until Stanley v. Illinois (1972) that unwed fathers were afforded the right to a hearing of parental fitness prior to the revocation of custodial rights to a biological child (Dapolito, 1993). Later cases, however, refined the instances in which fathers’ rights could be considered. In Quilloin v. Walcott (1978), for example, such protections are granted only to fathers that have demonstrated parental responsibilities and participation in the child’s life (Aizpuru, 1999). In Caban v. Mohammed (1979), unwed fathers gained the parental right to block the adoption of their child by withholding consent, a right which had been granted previously to mothers only (Eveleigh, 1989). Finally, in Lehr v. Robertson (1983), the court held that notice of adoptions are to be served only to fathers who have their names on the birth certificate, live with the mother, file in a paternity registry, or take other such steps to establish a substantial relationship with the child (Eveleigh, 1989). Complicating this situation is the fact that approaches to paternal registries vary from state by state, and registration deadlines may be as early as five days from the date of the child’s birth (Aizpuru, 1999). The most common result of a failure to register or establish paternity within this time period is the automatic termination of parental rights (Aizpuru, 1999). Such factors as the lack of awareness of the need to register, a lack of knowledge about the existence of the paternal registry system, or a lack of knowledge of the child’s birth among fathers could result in termination of parental rights in these cases. This circumstance was presented in McNamara v. San Diego County Department of Social Services (1988) a case in which a child was placed with an adoptive family prior to the knowledge of the father regarding the birth of his illegitimate child (Eveleigh, 1989). Subsequent to the father gaining knowledge of the child, a judicial hearing was held. In this case, a “best interests standard” was utilized to determine the placement of the child. Despite the fitness of the parental figure, custody was awarded to the non-parent due to the detrimental consequences of removal of the child from the home following many years of residence with the adoptive family. More recent case law (Case of Kelsey S., 1992) has addressed this issue to some extent, taking into consideration the behavior of the father (“fitness”) in relation to the child, as well as the “best interests” of the child (Gustafson, 1993).