There are instances in which parental rights are terminated improperly. In most cases, the wrongful termination of parental rights involve the rights of a father as a result of an order in a paternity case. A parent facing this situation can pursue the matter in court. The process of re-establishing paternity is challenging and complex. Understanding the basics of how to re-establish paternity rights and custody of a child is the first step in this process.
Draft a motion to re-establish paternal rights. The motion specifically must delineate why you believe the court should re-establish your paternal rights. In the vast majority of cases, paternal rights are re-established when a father did not receive proper notice of the initial court proceedings. In other words, a birth father was not provided notice or an opportunity to be heard in the case in which his paternal rights were terminated. The issue about re-establishing paternal rights must be resolved in advance of the court taking up custody-related issues.
File the motion to restore or re-establish paternal rights with the clerk of the court. Obtain from the court the date and time for a hearing on your motion.
Send a copy of the motion and notification of the date and time of the hearing on that motion to the other parent.
Present your evidence and arguments in support of your motion at the hearing. During the hearing, you will also need to respond to the evidence and arguments put forth by the parent with custody. After receiving the evidence, the court will render a decision. If the court orders the re-establishment of paternal rights, the next step is proceeding to obtain an order regarding custody.
Prepare a motion in regard to custody and parenting time (visitation) issues. Unless there is some sort of serious issue surrounding the other parent being able to maintain custody of the child, the court is not at all likely to award anything close to sole custody to the parent who prevailed on the restoration of parental rights issue. An example of such an issue is the death of the other parent or the other parent laboring under drug addiction or some sort of serious health problem. There is a possibility that the court will award joint custody with the primary residence remaining with the other parent.
File the motion pertaining to custody-related issues with the clerk of the court, obtain hearing information and send a copy of the motion and the date and time of the hearing to the other parent.
Appear at the hearing on custody issues, present evidence and argumentation. Following the hearing, the court will issue an order regarding custody and parenting time (visitation).
- Re-establishing paternity is one of the most difficult cases to pursue. If you desire to re-establish paternity in regard to a child you need to very seriously consider engaging the services of an experienced, qualified family law lawyer. The state and local bar associations will have directories of attorneys that practice in this area of the law. If you cannot afford a lawyer, you may be able to obtain free legal representation from an attorney on the staff of the legal aid organization in your area. Moreover, most law schools in the United States operate clinics through which individuals can access legal representation for no charge.
- "Family Law;" William Statsky; 2001
- Cornell Law School, Child Custody: Overview