With the decline of marriage rates in the United States, particularly Texas, more and more children are being born to unmarried parents. Even with the availability of common law marriage, many parents are simply choosing to be “unmarried.”
So what happens when that unmarried couples splits up? Does the father have any rights?
The short answer: No, he doesn’t.
However, the unwed father can acquire rights under Texas law by taking certain steps to establish paternity and requesting custody, or as it’s called in Texas, “conservatorship.” (Most people are familiar with the term “custody,” so that’s what it’s called here.)
The Best Interest Of The Child
Unless a father legally establishes paternity, the mother will generally have exclusive rights to the child, and will not have to consult with the father on care, education, medical treatment or any issue. The mother can also move out of state without informing the father of her intentions, where she’s going or who she might be living with. The father will have no legal say in the matter, and most courts tend to side with the mother, citing “the best interest of the child.”
Unless the father can demonstrate that the mother (other relatives or the child’s current guardian) is completely unfit to raise his child, it is highly unlikely that the court will award him sole custody, especially if the parents were never married.
Establishing Paternity To Acquire Father’s Rights
There are a number of reasons to establish paternity beyond being the “presumed father.” For one, the child won’t be able to receive things like inheritances, VA benefits, Social Security Disability, and health insurance from the parent without it.
Texas automatically lists the alleged father’s name on the birth certificate at the time of birth if the parents are married. For unmarried parents, the mother can choose to add the father’s name to the birth certificate after the father signs a legal form acknowledging that the baby is his. If the mother doesn’t, the father will have to get a court order to have his name added.
But just adding a name to a birth certificate doesn’t establish paternity. In fact, the mother can name anyone to be added as the father, married or not. One famous example was the case of the late Anna Nicole Smith, who named her attorney as the father when her daughter Dannielynn was born. After Smith’s untimely death, multiple claims of possible paternity emerged. Eventually, court-ordered DNA testing revealed the actual biological father, photographer Larry Birkhead, and the baby’s birth certificate was then updated with his name. Birkhead was given full custody.
If a father lived with the child’s mother continuously for the first two years of its life and represented to the public that he is the father, Texas Family Code 160.204 establishes the presumption of legal fatherhood. In other words, much like if the parents were married, the man is a “presumed” or an “alleged father” to the child unless otherwise disproved. A DNA test may be required to complete the establishment.
Texas’ Uniform Parentage Act is an administrative process that both parents complete after the child’s birth to acknowledge and agree on the parentage. There are a number of forms that both parents must sign and file with the Texas Vital Statistics Unit. Once completed, the state acknowledges that the father’s rights are established.
Should the mother not want to allow the father access to the child, or the father questions whether the child is actually his, a child support case can be opened with the Office of the Attorney General (you may also want to hire a private attorney to help.) A judge will likely order a DNA test to establish paternity, after which the judge will issue an adjudication of paternity, legally establishing the father’s rights.
Once positive paternity is established, an experienced family law attorney can help you work out a visitation schedule. One option is to create and negotiate a parenting agreement so that both parties can work together to co-parent the child effectively. (These are common in divorce cases.) This agreement can include details about the child’s education, medical care, religious upbringing, visitation schedules, changes to the agreement and other important details.
Need Help Establishing Your Paternity Rights?
Wendy L. Hart is an experienced Fort Worth family law attorney with experience in child custody rights and arrangements for both married and unmarried parents. We can provide full representation both for men and women and will work to ensure you are treated fairly, as well as protect the interests of you and your children.