Burden of Proof

Fathers must take responsibility to earn their rights.

Lauren Elfant, an attorney with Bronx Defenders, explains fathers; legal rights and responsibilities.

Q: How can new fathers protect their relationships with their children?
A: When your child is born, you want the mom to put your name on the birth certificate and you want to stay involved. Regular contact with your children is very important. If you’re not on your child’s birth certificate, then you should start by establishing that you’re the biological father of your child. You can file an affiliation petition, which says that both you and the mother agree that the child is yours, or a paternity petition to get a paternity test.

Ideally, you want to resolve issues out of court. But if the mother is not letting you visit, file a visitation petition. There’s a petition room in the court and they explain how to do it.

Finally, keep track of your involvement. If you have a custody or visit battle down the road, it helps if you can say, Every time I gave mother money or visited my child, I wrote it down this in a book. Maybe it’s not enough, but I tried.

Q: What issues do fathers face when their children go into care?
A: The first issue that has to be addressed is whether the father can prove he’s the father. A mother doesn’t have to prove her relationship, but it’s a process to prove you’re the father.

Another issue is that there’s a real lack of services available to fathers. There are mother-child drug treatment programs, but very few drug treatment programs are designed for fathers to live with their children.
Housing can be an issue for fathers, because there tends to be more services and subsidies for mothers and their children or fathers with full-time custody.

The biggest issue here in New York is that there’s few services for fathers who are alleged to have perpetrated violence within a family. Most states offer many services for these fathers—programs that take into account what the parents want, what the children want, the degree of severity of the allegation. But here, there’s only one service for these programs—- batterers program, and these cost money. Medicaid will not cover batterers programs, so fathers have to pay. It’s very punitive, and in my experience, it stops clients from participating. This one size fits all approach to family violence really prohibits families from reunifying in a healthy, safe way.

Q: If children are removed from their mother, what is the father’s role in the case?
A: If your child enters foster care, then by law, they have to serve you with a petition and inform you of court dates. But if you’re not on the birth certificate, and the mother says she doesn’t know who the father is, many times father doesn’t find out that their child is in care.

If the father is not named in the case—meaning that he hasn’t been accused of anything—then in theory, the court doesn’t have jurisdiction. But in reality, the court often will ask the father to prove that he’s a fit parent.

The court can demand that a father seeking custody participate in services, have supervised visits and even take a drug test. That may seem fundamentally unfair, but the court has jurisdiction over the child and often makes it very difficult to get the kid.

Unfortunately, the “non-respondent” parent doesn’t have a right to an attorney, either, so many fathers in this situation don’t know their rights. But the father’s right is to come to court saying, “Why is my child not immediately coming home to me? What can I do?”

Q: What puts fathers at risk of losing the right to see their children?
A: Many times my clients don’t consider themselves a batterer and don’t want to do the program, or they don’t have the money. We see fathers who let years and years go by without getting services so they can legally spend time with their children.

The court will take out a full stayaway order of protection against the father, so if the mothers let them see their kids, they’re putting the children at risk of removal. The mothers say, “My children want to see their father.” I We have to tell them, “You don’t have that option.” If a father won’t do the program or supervised visits, he has to win at trial, and that’s very rare.

Fathers are also at risk of having their rights permanently terminated if their children are in care and the mother’s rights are terminated. If the court can’t find you, or you haven’t taken the steps to gain custody of
your children, your rights can be terminated even if there is no allegation
against you.

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