Do Unmarried Fathers Have Rights in Custody Battles?

When a child is born to a married couple, both parents have natural rights to their child. When the couple goes through a divorce, a judge will help the parents work out the details about who gets the children, for how long, and other rights such as visitation and child support. However, parents who are not married when their child is born do not have the same pre-established rights. So what can an unmarried father do to protect and establish his parental rights? If he wants to fight for the custody of his child, does he have the right to do so?

Alison Grant, Lewisville’s trusted family law attorney, has taken a close look at these issues to help provide guidance to fathers across the Lewisville, Texas area. Here is what unmarried fathers need to know about their parental rights and whether they can fight for the custody of their child during a legal dispute.

What Is Paternity?

Paternity is a legal term that means legal fatherhood. For married couples, the law automatically recognizes both parents as the legal guardians of the child and no further legal actions need to be taken to establish paternity.

For unmarried parents, when a child is born, Texas State law does not recognize the biological father as a legal parent. This means that the biological father does not have any legal rights to his child until the paperwork is submitted to a court to have him become the legal parent. Paternity has to be established for the biological father to have any legal rights to their child.

How Is Paternity Established?

There are three ways to establish paternity in Texas: Voluntary Paternity Establishment, Agreed Paternity Order, and Court-Ordered Paternity. Here is an overview of these different paths to establish paternity.

• Voluntary Paternity Establishment: This path establishes a legal father for the child. Parents will sign a free legal document called an Acknowledgment of Paternity (AOP). Both parents can sign the AOP before or after the birth by working with an AOP-certified entity, such as the staff at the hospital. Parents will need to show a valid form of legal ID, such as a driver’s license or passport.
• Agreed Paternity Order: This path also establishes a legal father for the child as well as rights for the father regarding custody, visitation, child support, and medical support. For this process, the parents, and then the judge, will sign a legal agreement that states who the father of the child is. Parents must agree to the specific legal rights about custody, visitation, child support, and medical support before signing. It is best to work with a family law attorney if seeking this route to ensure that all paperwork is filed correctly.
• Court-Ordered Paternity: This path establishes a legal father for the child along with rights regarding child custody, visitation, and child and medical support. The court order resolves the question about paternity when the parents do not agree on the father’s identity. Either one of the parents, working with a family law attorney, will need to appeal to the court as to the identity of the father to get this process started.

What Is the Legal Definition of an Unmarried Father?

An unmarried father in Texas is a father of a child who is not married to the biological mother of the child in question. This does not mean he is not in a relationship with the mother. They may be engaged, broken up, or have other circumstances that led to the conception of the child.

In some cases, unmarried fathers may be married to someone other than the mother of the child in question. However, he will still be considered an unmarried father for this legal situation with this child.

Does an Unmarried Father Have Any Legal Rights to the Child?

No. The State of Texas automatically gives full legal and physical custody of the child to the biological mother, even if the unmarried father’s name is listed on the birth certificate. The birth certificate by itself does not establish any legal rights to the child for the unmarried father.

The unmarried father will need to be legally recognized as the father for him to have any legal rights or legal responsibilities. For example, the biological mother cannot seek out child support if the unmarried father is not legally recognized as the parent of the child. Once his parental rights have been recognized and established, the unmarried father will gain the same rights as a married father. This includes the right to visitation for the child, the right to be a part of the decision-making process, and the right/responsibility to provide child support.

Is There a Statute of Limitations on When Paternity Can Be Established?

In some cases, the biological mother or father may not initially seek out paternity rights for the child in question. However, they can do so at any point until the child becomes an adult. In these cases, if the biological mother was married to another man at the time she gave birth, and that man is the presumed parent, then the unmarried father will have to challenge the paternity within four years of the child’s birth.

However, there are some legal caveats to this statute. If the presumed father was led to believe that the child in question was his at the time of the birth and then later found out that it wasn’t, the biological father can challenge the paternity. This is true even if the statute of limitations has been reached. 

The second is if it can be proven that the mother did not engage in sexual activity or live with the presumed father at the time of the child’s conception. In these cases, it is best to work with a family law/child custody attorney to ensure that you are getting the best direction as to how to proceed to establish paternity after the statute of limitations has expired. 

What Are the Benefits of Establishing Paternity for the Unmarried Father?

When an unmarried father has his paternity established, he gains the same legal rights a married father would have in a divorce situation. He can seek conservatorship of his child. (Conservatorship is a legal term that means custody over the child.) This conservatorship can be joint managing conservatorship, which means that he and the biological mother share legal authority over all decisions concerning the child. 

He may also seek sole managing conservatorship, which means that he would have complete legal authority and custody of the child. It is important to note that this situation will only be looked at when the judge deems it necessary to remove the child from the mother due to the child’s best interests. For example, if it can be proven that the biological mother constantly neglects their child or the child’s needs due to substance abuse, then the paternal father can seek out sole custody.

If the paternal father wins sole custody, then the other parent will have possessory conservatorship. This means that they have visitation rights only to the child. In some cases, especially with cases of substance abuse or neglect, the visitations may be supervised only. This is established to protect the child from any undue harm.

What Are the Benefits for the Child When Establishing Paternity?

There are many benefits to children knowing their biological father, including:

• Having an established relationship with their biological father and their father’s side of the family.
• Building an emotional bond with the father through the legal bond of paternity.
• Gaining a sense of identity and connection with their extended family.
• Reaping the benefits of having a paternal father in terms of emotional, financial, and physical well-being.

What Are the Benefits for the Biological Mom When Establishing Paternity for the Unmarried Father of Their Child?

Biological mothers can also expect benefits from ensuring that the biological father is recognized as the paternal figure. These benefits include:

• The child’s legal rights are established by his or her father.
• It makes the father legally responsible for the child.
• It allows the mother to seek child support from the paternal father.
• It helps establish the child as the biological father’s child, giving the child rights to the father’s inheritance, medical benefits, social security, or veteran benefits (if applicable).

A Lewisville, Texas Child Custody Attorney Can Assist With Your Case

Regardless of whether you are the biological mother seeking to establish paternity so you can get child support for your child or the unmarried father seeking to gain legal rights to your child, Alison Grant can help. She has been serving the Lewisville, Texas community for years, helping parents navigate the ins and outs of child custody, child support, and visitation agreements. With her experienced guidance, you will be able to navigate the complicated legal ground to establish paternity and ensure that a favorable resolution is reached for the child. Contact her today for more information on her family law or child custody services.