Texas laws for conservatorship (custody) after divorce are fairly straightforward. For unmarried parents, the laws are more complex, particularly for the father of the child.
When two people transition out of a non-marital relationship that resulted in children, they don’t go through a divorce proceeding to decide conservatorship. Therefore, the mother of the child or children will have exclusive rights to the children unless the father takes steps to establish himself as their other legal parent. Otherwise, the father has no legal rights to his children, including visitation rights.
Rights Of The Unmarried Mother
Without a husband, the unmarried mother automatically has sole conservatorship (“custody”) of the child, even if the father is named on the birth certificate. This means that the mother can make all decisions for the child, including upbringing, education, medical care, and other important choices.
The father has no rights until he establishes his legal parentage. Therefore, the mother can take the child anywhere, including outside of Texas or even the United States without notifying the father or seeking his permission. Without established paternity, the father has no right to object, and no way to prevent her from doing so.
However, if the mother is seeking child support, she will need to petition the court to compel the alleged father to take a DNA test for paternity. Only when paternity is positively established can she begin to receive child support.
Rights Of The Unmarried Father
In many cases, the father is the one who has to fight for conservatorship. Just because he is named on the child’s birth certificate doesn’t make him the legal father.
For a man who is not married to the child’s mother at the time of conception or at birth, he has no legal rights or obligations to the child.
He will have to establish those rights for himself in order to have any kind of custody. If he doesn’t, the mother will be the sole managing conservator with exclusive rights to the child, including the right to deny visitation.
Establishing paternity can be done in one of two ways:
- The mother and father can both sign an Acknowledgement Of Paternity. This is an affidavit acknowledging that the man is the child’s genetic father and establishing his paternity when there is no disagreement on the father’s identity.
- The father can pay for a DNA test that involves a cheek swab of both himself and the child that compares the DNA samples and determines if there is enough to establish a parental connection. If there is, the father’s paternity is proven and established.
If the mother refuses to allow a cheek swab for a DNA test, the father will need the help of a family law attorney to help him establish paternity.
Types Of Conservatorship
The rights of a conservator determine which parent—or both—can make decisions on the child’s behalf. This includes education, extracurricular activities such as sports, decisions about health and insurance, what religion the child will or won’t be involved in, and many other topics.
There are three types of conservatorship, or custody, that parents can have:
- Joint Managing Conservator—both parents have the same legal authority to make decisions on behalf of their children.
- Sole Managing Conservator—also called “sole custody,” one parent has exclusive conservatorship rights.
- Possessory Conservator—when one parent has visitation with the child, but no legal authority to make decisions.
Texas family courts prefer that children have a relationship with both parents. When that’s not possible, or family history indicates the potential for problems, a judge will make decisions that are in the best interest of the child.
Once paternity has been established and the conservators have been named, the court can make a decision on possession and access (the terms used in Texas for “visitation.”)
Possession schedules for access to the child or children for both married and unmarried couples is the same. These schedules are usually based on the Standard Possession Order, the default visitation schedule for parents in Texas.
Parents can also create their own possession order schedules to fit their family’s needs. The schedule will have to be approved by a judge before it becomes legal.
It’s important to abide by the possession order signed by the court. Should you need to make changes to the possession order, your family law attorney can help you with a modified possession order.
Help In Fort Worth With Paternity, Custody, And Other Family Law Issues.
Establishing paternity is one of the most important things you can do for your children. Ensuring that both parents are available and have a strong relationship with the child or children gives them a good start in life.
For more than 20 years, Wendy L. Hart is an experienced family law attorney helping people throughout Tarrant County with visitation and other rights with their children. We work to help you through any family law issues you have, and that your rights are protected. Visit our Mansfield office, use our online contact form, or call us at (817) 842-2336. We’re ready to help.