Father's Rights to Custody of a Child in Foster Care

By Patti L Brown

Updated July 21, 2017

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Children are placed into foster care for many reasons, including abuse, neglect and domestic violence. A father’s rights to custody of a child in the foster care system are influenced by many different factors, including the reason the child was placed into foster care and the father’s relationship with the child.

Definition of a Father

According to the U.S. Administration for Children and Families, “There is no standard definition for 'father' in statutes across the States.” The term “biological father” generally refers to the man who conceived the child with the mother. A “putative father” in some states means a man who fathered a child but is not married to the child’s mother. A “legal father” may be married to the mother at the time of the child’s birth and may be listed on the child’s birth certificate without being genetically related to the child. A “stepfather” is married to the child’s mother but does not have the same rights as the biological father.

Custodial parents

Fathers who live with their children are considered “custodial” parents. If both parents live together with their child, they share equal rights and responsibilities for raising the child. When a child is removed from a home where she lived with both parents, both parents need to demonstrate to the child welfare system that they are capable of parenting and that the original reason for child’s removal has been remedied.

Non-custodial Fathers

Some fathers do not live with their children and are considered “non-custodial” parents. A non-custodial father may still be active in his child’s life, despite not living with her. He may be considered a provider of a safe home for the child if he was not part of the concerns that warranted the child’s placement into foster care.

Uninvolved Fathers

If a non-custodial father has not played an active part in his child’s life, the court is going to explore the reasons for his absence. If he was aware of the child’s existence but made no attempts to establish a relationship with the child, some states may consider that unfavorable towards the father. That father may not have the same rights as a father who has been emotionally involved with his child.

Parents as Individuals

Whether the parents live together or not, when it comes to legal rights, each parent is considered an individual. Each parent has the right to their own legal representation. Each parent may have to demonstrate to the court that they are considered fit to have their child returned from foster care.

State Laws

Foster care in the United States is administered by state governments. Thus, each state has its own foster care regulations and child welfare laws. Attorneys representing fathers in child welfare cases need to be familiar with that state’s family law, including state-identified parental rights.