Unwed Fathers in Oklahoma: Know Your Paternity Rights
Unmarried fathers have these rights in Oklahoma:
To be legally recognized as the father
To seek custody and visitation with the child
A court may not terminate your parental rights, unless you are given notice, and specific circumstances are present
The linguist Victoria Fromkin complained that, “We talk of unwed mothers but not unwed fathers.” This post will talk about unwed fathers.
How to become recognized as the legal father of the child
1. As a presumed father. If you resided in the home with the child for the first two years of the child’s life, and openly held out the child as your own, you are the “presumed father” of the child, and have legal rights as the father.
2. As an acknowledged father. If you and the mother both sign an acknowledgment of paternity, then you have the legal rights as the father of the child.
Your acknowledgment of paternity will be void if the mother was married to someone else at the time of the child’s birth, or if there is another man who is the child’s “presumed father”, or if someone else has signed an acknowledgment of paternity, or if a court has adjudicated someone else as the child’s father. However, if a presumed father signs a denial of paternity, your acknowledgment will be valid. Also, if someone else has signed an acknowledgment of paternity, he may rescind the acknowledgment within sixty days, or on the date of the first hearing in a paternity case.
If another man has signed an acknowledgment of paternity, and does not rescind the acknowledgment within sixty days, or on the first hearing date in a court case, then he may file a court action challenging the acknowledgment. He may file this action within two years after the acknowledgment, if his challenge is based on duress or mistake of fact. He may file this challenge any time if his challenge is based on fraud.
Also, if you have signed an acknowledgment of paternity, you may rescind the acknowledgment within sixty days after signing, or on the first day of a hearing in a court case. After this, you may only rescind the acknowledgment of paternity if you file a court action. You must file the action within two years if your challenge is based on duress or mistake of fact, but you may file the action at any time if your challenge is based on fraud.
For more information challenging an acknowledgment of paternity based on fraud, click here.
3. As an adjudicated father. You may obtain legal standing as the father by filing a paternity action. If the mother was not married to anyone else at the time of the child’s birth, and the child has no presumed or acknowledged father, you may file a paternity case at any time. If the mother was married to someone else at the time of the child’s birth, or if child has a presumed father, then you must file a paternity action within two years after the child’s birth. If the mother, and someone else, have signed an acknowledgment of paternity, you must file a paternity action within two years after they signed the acknowledgment. The only way to challenge paternity later than two years after a child’s birth, or later than two years after the signing of an acknowledgment, is if you can prove fraud. To see the law on proving fraud, click here.
Your right to custody
If you and the mother were not married at the time of the child’s birth, the mother has custody until a court determines otherwise. Okla. Stat. tit. 77 § 7800.
However, you may obtain custodial rights by filing a paternity action. In a paternity action, the court decides custody and visitation based on what is in the best interests of the child.
If the mother dies, you have the constitutional right to custody. Stanley v. Illinois. The government may not deprive you of custody after the mother dies, unless the government proves that you are an unfit parent.
Your rights if someone else tries to adopt the child
If you are the biological father of a child, then, in general, no one else may adopt the child without your consent.
Also, no one may adopt a child without your consent, if you are the “putative father” of the child. You are the “putative father” if:
You have acknowledged paternity;
You claim to be the child’s father;
The mother has said you are the father;
You have been alleged to have had sexual intercourse with the mother during the probable time of conception.
How someone may adopt your child without your consent
If you do not consent to an adoption, the court MUST deny the adoptive parent’s request to adopt the child, unless the adoptive parent can prove that certain circumstances are present. To see a list of the circumstances when a court may allow adoption without your consent, click here.
If someone wishes to adopt your child without your consent, they must ask a judge for a hearing, and must serve you with notice of the hearing, at least fifteen days before the hearing. If the adoptive parent cannot locate you after making what the court considers to be a “good faith effort”, then, the adoptive parent must publish notice of the adoption hearing in a local newspaper.
In a proceeding to adopt without consent, you may present evidence. You have the right to an attorney. If you cannot afford an attorney, the state must pay for a court-appointed attorney to represent you. If the court allows an adoption without your consent, you have the right to appeal.
There are only two ways your parental rights may be terminated in Oklahoma – in an adoption case, or in a deprived child proceeding.
A “deprived child” proceeding is a case where the state alleged that a child is not being properly cared for by a parent or guardian, and is in need of services from the state.
Only the district attorney – not a private person – may file a deprived child petition.
In a deprived child proceeding, the state must give notice of the hearing to both parents – including the father, and any “alleged” father.
In many deprived child proceedings, the state does not seek to terminate parental rights – the goal is reunification with the parents. If the state seeks to terminate your parental rights, you have the right to a jury trial. The state may not terminate your parental rights in a deprived proceeding, unless certain circumstances are present. To see a list of the circumstances under which a judge may terminate your parental rights, click here. If a judge or jury terminates your parental rights, you have the right to appeal.
Know Your Rights and Protect Them!
The U.S. Supreme Court has said that the right to raise your children is one of the “basic civil rights of man.” If someone is trying to trample on your parental rights, you don’t have to let them. Know your rights and protect them!