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Lawrence D. Gorin
Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1544
Experience:  30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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In South Carolina, what rights does a father have of a

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In South Carolina, what rights does a father have of a child.   He was never married, but lived with the mother of the child for over a year.   He abandoned the mother and child once, and also physically abused and emotionally abused the mother and child.    The mother has left with the child and has gone for counselling and has requested the father to do the same.   The police never were called when there was physical abuse, but there are witnesses.   What rights does the father have?   He is threatening an ugly "divorce".
YOUR QUESTION:
     In South Carolina, what rights does a father have of a child. He was never married, but lived with the mother of the child for over a year. He abandoned the mother and child once, and also physically abused and emotionally abused the mother and child. The mother has left with the child and has gone for counselling and has requested the father to do the same. The police never were called when there was physical abuse, but there are witnesses. What rights does the father have? He is threatening an ugly "divorce".

ANSWER:
     First, they mother and father were never married, there can be no divorce (ugly or otherwise). So his threats along that line are total nonsense.

Second, your question does not indicate whether the father of the child born out of wedlock has been established as being the child’s “legal father” through one of the methods prescribed by law for doing so.

Let me explain: When a child born to an unmarried woman, until and unless “legal paternity” of the child has been established through one of the methods provided by law for doing so, the child’s biological father has no legal rights (and no legal responsibilities). He is, in the eyes of the law, a “non-entity,” the same as if he does not exist.

Third, legal paternity of a child born out of wedlock can be legally established by the parents jointly signing and filing with the state’s Vital Records agency a Voluntary Acknowledgment of Paternity (VAP) form. If the biological father refuses to sign the VAP form, the alternative is to initiate a legal proceeding to involuntarily establish paternity, with judicially or administratively through a child support enforcement agency. NOTE: While DNA tests provide evidence of biological paternity, such tests by themselves do not prove or establish “legal paternity.”   And keep in mind that, again, that legal rights and legal responsibilities are founded upon LEGAL paternity, NOT biological paternity.

Next, if legal paternity HAS been established, the man established as the child’s legal father does not on that basis alone have any legal rights of access to the child, nor does the mother have any legal obligation allow him any access to the child. By operation of law (both the laws of the legislature as well as the laws of Nature), physical custody remains with the mother until and unless a judge says otherwise. And in the absence of a court order saying otherwise, physical custody gives the mother total decision-making authority.

Once the father’s legal paternity of the child has been legally established through one of the methods authorized by law for doing so, the father may then apply to the court for a court order that effectively requires the mother to make the child accessible to him for visitation (parenting time) purposes. But until and unless that occurs, the mother indeed has more rights than the father to make decisions concerning the baby. In fact, she has ALL the rights, including custody and he has none. In general, the father has only such rights as the court allows.

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