Change the law to make it fairer for fathers

In the 1970s, Ruth Bader Ginsburg famously used “Appendix E” — a list of hundreds of laws that discriminated on the basis of sex — as a playbook for dismantling gender discrimination. Almost all the statutory language that explicitly treated men and women differently has since been struck from the law books. Yet New York State has failed to remove a blatant example of gender discrimination from our Domestic Relations Law.

Gov. Hochul has a bill on her desk that would remedy that. It is aptly named the Parental Equity Act (S6389/A7347).

The bill fixes a law that dates back to the time when children of unmarried parents were considered “illegitimate” and makes unmarried fathers’ parental rights categorically contingent on providing financial support, ignoring the many other important ways fathers support their children. Fathers, of course, just like mothers, provide love and emotional support, as well as the full range of daily parental care — cooking for, bathing, and dressing children, taking them to school, helping them with homework, and more.

All mothers and married fathers have the benefit of legal protection of their relationships to their children. They may lose parental rights only if they do not meet their parental responsibilities. Because of outdated stereotypes, unmarried fathers alone must “earn” parental rights by paying child support — and not to their children’s mothers, but to the state.

Most unmarried fathers are never affected by this discriminatory law because no one questions their right to parent. But for unmarried fathers whose children enter the foster system, this discrimination can lead to the permanent loss of their children. When children enter foster care — often for reasons of poverty — New York law requires foster agencies to work toward family reunification because that is almost always best for the children. But agencies are not required to work with unmarried fathers unless they pay child support to the state.

Current law entirely ignores the bonds children have to their fathers, who are not even told they need to pay child support while their children are in the foster system. Worse, in many parts of the state, they are not allowed to pay child support. It’s Kafkaesque: Fathers can’t make payments but then face the ultimate penalty for not paying.

We see too often the harm this law inflicts on families. Consider a father we represented. Though unmarried, he was living with his daughter and financially supporting her. Then, while he was traveling out-of-state for work, his daughter was removed from her mother’s care because she was accused of using corporal punishment. The father quickly returned to New York to try to get his child out of the foster system. But when the mother died suddenly, the agency said he had no rights to his daughter because he had not paid child support — something he’d never been asked to do.

As we write this, another client is being threatened with the permanent loss of his children, who were temporarily placed in foster care — and the children with the loss of their father. Both he and the children’s mother have been engaging in services to improve their parenting and working to maintain their connection to the children despite their separation. The children’s mother will get a trial to determine whether there’s a basis to permanently terminate her rights. The father will not get that trial — solely because he’s not married to the children’s mother.

Both of these families are families of color. That is important to highlight because, while New York’s Domestic Relations Law explicitly discriminates only on the basis of gender and marital status, it also has a disproportionate impact on families of color, which make up the vast majority of families harmed by the law. In New York City, Black children are more than 13 times as likely as white children to be in foster care and Latino children are more than five times as likely to be.

Communities of color are fighting back against the systemic racism of the family regulation system. One part of that effort must be disassembling the legal pieces that structure a system that — intentionally or not — devalues and destroys the relationships between fathers and children in some communities and not others.

Thankfully, the Legislature has passed the Parental Equity Act, which would ensure that all parent-child relationships are treated equally. The legislation lays out clear paths for unmarried fathers of children in foster care to establish their rights. This would prevent the unnecessary severing of paternal ties in the low-income, disproportionately families of color who interact with the foster system.

The legislation would not alter the laws governing private adoptions and it would not diminish the ability to obtain child support from parents or to terminate any parent’s rights when justified. It would simply require that all parents be treated as parents under the law.

Along with a wide coalition of advocates for children and parents, we urge the governor to sign this bill. It would mean the world to the fathers involved — and to their children. These relationships should not be valued less simply because the parents were not married.

Gottlieb is director of the NYU School of Law Family Defense Clinic. Mulzer is senior attorney for Law & Appeals in the Family Defense Practice at Brooklyn Defender Services.