What are my Divorce Rights as a Father?

African-American son and father rests on grass enjoying time together.

Missouri law presumes that a child is best served by having both parents play an active role in their lives. In some situations, fathers may have to go through a few extra steps to assert their parental rights, such as when they were not married to the child’s mother when the child was born. When a father’s legal relationship to the child is established, Missouri law specifically states that courts may not favor one parent over another solely based on sex or gender. Despite equal rights for divorced fathers under state law, old biases about mothers and fathers may still find their way into custody cases. An experienced divorce attorney can help make sure that a father’s rights are fully recognized and respected in divorce cases.

How Is Fatherhood Legally Established in Missouri?

Missouri law presumes a biological father-child relationship, and therefore also a legal parent-child relationship, if the birth occurs during the marriage or a short time after a divorce. The legal parent-child relationship entitles the father to rulings from a court on child custody, visitation, and child support in the event of a legal separation or divorce.

The legal presumption that a husband is a biological and legal parent of a child born during the marriage is “rebuttable.” Either parent may present evidence during a divorce or another legal proceeding to show that the husband is not a child’s biological father. DNA testing to establish paternity, or rule it out, is a common type of evidence used in this kind of proceeding.

If a father and mother are not married when a child is born, the father’s rights are not fully established under state law. This is true even if his name appears on the child’s birth certificate or he and the mother got married after the child’s birth. Without confirmation of legal parental rights, the father cannot seek custody or other court orders.

Both parents can establish the father’s legal rights by signing a form known as an Acknowledgment of Paternity. They may do this at the hospital after the child is born. Either parent may file a petition in court or with the Missouri Family Support Division to establish the father’s paternity. If the parties do not sign an acknowledgment as part of this proceeding, the court may have to hold a hearing where the parties can present evidence in favor of or against the alleged father’s paternity, such as:

  • The results of DNA testing;
  • Expert witness testimony about whether or not he could be the child’s father; or
  • Other evidence showing that the mother and the alleged father were together, or could not have been together, at the likely time of conception.

What Are a Father’s Rights in a Missouri Divorce?

Missouri law makes it clear that divorce rights as a father are no different than any other parent’s rights. Section 452.375.8 of the Missouri Statutes provides that, with regard to child custody, courts may not favor either parent “because of that parent's age, sex, or financial status.” Courts also may not “presume that a parent, solely because of his or her sex, is more qualified than the other parent” to care for a child in any way. Fathers’ rights and obligations in divorce, therefore, include all of the following:

  • The right physical and legal custody of a child, if it would be in the child’s best interests;
  • The right to visitation and parenting time; and
  • The right to receive or the obligation to pay child support.

Historically, court decisions on child custody in Missouri and around the country may have favored mothers more often than fathers. This was often based on cultural perceptions that mothers were better suited to caring for children while their husbands worked. Although this is no longer most people’s understanding of family structures, some aspects of this view may still linger in the judicial system. A child custody attorney with knowledge of Missouri laws regarding fathers’ custody rights can help fathers obtain fair outcomes in court.

When parents are involved in a custody dispute, either as part of a divorce or as a separate legal proceeding, state law requires them to submit proposed parenting plans to the court shortly after the beginning of the case. This provides a father with an opportunity to let the court know that he intends to assert his full rights under the law. The parenting plan must include:

  • A written schedule of custody, visitation, and parenting time, including school and vacation schedules, birthdays, holidays, transportation between the parents’ residences, telephone access between each parent and the child, and communication between the parents;
  • A breakdown of the decision-making authority associated with legal custody, including education, medical care, child care, extracurricular activities, and dispute resolution procedures when the parents disagree; and
  • A plan for how to share expenses associated with the child.

Mark A. Wortman is a Kansas City family attorney. He has dedicated his whole practice to representing people who are involved in divorces, child custody disputes, and other difficult family law matters. Please contact us today online or at (816) 523-6100 to schedule a confidential consultation to discuss your case.

Categories: Divorce