In Texas, the mother of a newborn child – whether married or not – automatically has full legal and physical custody rights because, generally, there is no question about who the child’s mother is. However, complications can arise. If you are an unmarried mother concerned about your parental rights, turn to an experienced Round Rock child custody attorney for help.
Distinguishing the Rights of Married Parents from Those of Unmarried Parents
Custody laws in Texas for unmarried parents are such that when a couple is married at the time of a child’s birth, both mother and father are entitled to automatic rights regarding physical and legal custody. However, when the mother isn’t married, she has automatic physical and legal custody rights. The father’s paternity must be established before he is awarded any legal rights.
When Both Parents Agree Regarding the Father’s Paternity
If you and your child’s father agree on the matter of paternity, you’ll need to file a form to make it official. If you are living with the father as a couple, you won’t need to resolve child support and custody terms. If, however, you are not with your child’s father, child custody arrangements and child support will need to be addressed with the court once paternity is established.
When the Parents Are Not in Agreement
When the mother and purported father are not in agreement about paternity, either one can request that the court require genetic testing. In specific situations, the court can also require DNA testing outside of either parent’s request.
Child Custody Arrangements
Child custody in Texas is two-pronged and includes both legal custody and physical custody.
Legal Custody
Legal custody refers to the authority to make primary decisions on behalf of one’s child. As an unmarried mother, you have this right from the start. Your child’s father – on the other hand – must establish paternity and seek a court order to obtain this right. Legal custody deals with important decisions that guide your child’s upbringing, such as the following:
Their schooling
Their health care
Their participation in extracurriculars
Their religious education
If your child’s father does establish paternity and seeks legal custody, the options include:
Sharing this decision-making authority between yourselves
Granting one parent tie-breaking authority
Dividing the decision-making between you both according to category
Granting one of you sole legal custody
Physical Custody
Physical custody refers to the all-important parenting time, which sets the schedule by which your child will divide their time between you and their father. As an unmarried mother, you also have automatic rights to physical custody. Unless your child’s father establishes paternity and seeks a parenting time order through the court, you’ll have sole physical custody.
The State of Texas finds that children are better off when they can maximize the amount of time they spend with both parents – except when extenuating circumstances bar such an arrangement. In other words, as an unmarried mother, you can expect the court to grant your child’s father some parenting time schedule if he seeks one and is considered fit.
The Child’s Best Interests
As mentioned, Texas courts turn to the children’s best interests when making child custody determinations. If the father does not pose a risk to the child, they’re very likely to receive some parenting time – based on the court’s presumption that having a relationship with both parents is generally preferable.
The amount of parenting time your child’s father receives will depend on the circumstances at hand and on best interest factors like the following:
Your child’s developmental stage
Your child’s physical, educational, and emotional needs, including any special needs
The degree to which each of you has been involved with raising your child to date
The depth of the relationship each of you has forged with the child to date
The degree to which the child’s current living situation serves their best interests concerning home, school, and community – also known as the status quo
Each parent’s commitment to bolstering the strength of the child’s relationship with the other parent
Each parent’s commitment to engaging in practical co-parenting with the other
Whether there are related concerns regarding domestic violence, child abuse, or child neglect
The degree to which each of you prioritizes the child’s best interests
The stability of the home each of you offers
An Unmarried Mother’s Rights Are Total
If you are an unmarried mother and your child’s father has not established legal rights, your parental rights are total. This means that you have the right to make all the primary parenting decisions on behalf of your child and to decide when, and if, the child’s father sees the child.
If your ex wants to be part of your child’s life, the court will likely consider it in your child’s best interest to award him parenting time. The factors considered include each parent’s commitment to the child’s best interests, and attempting to drive a wedge between your child and their father will not do you any favors.
If you genuinely believe that it is not in your child’s best interest to spend time with their father – or to spend unsupervised time with their father – it’s time to consult with a focused child custody attorney.
What Your Parental Rights Entail
As your child’s unmarried mother, you have all of the following rights from the start:
The right to spend as much time with your child as you can
The right to make decisions on behalf of your child
The right to attend the activities your child participates in, including school functions
The right to be your child’s designated emergency contact
The right to access your child’s records related to their health care and education
The right to provide consent for the medical treatment your child receives
The Parental Presumption for Fathers
While an unmarried mother’s rights in Texas are well established, an unmarried father’s are far less so. The state employs certain parental presumptions concerning fathers and their rights. A presumption is presumed – or believed – to be true without needing to prove it. These presumptions afford parental rights to a father in the following circumstances:
When he is married to the mother at the time of a child’s birth
When the child is born within 300 days of the couple’s divorce being finalized
When the father lives with the mother and child continuously for the first two years of the child’s life and holds himself out as the child’s father
When the father marries the mother after the child’s birth, and either agrees to be named on the birth certificate, asserts paternity by filing the appropriate records with vital statistics, or formally agrees to support the child
If none of the above apply, the father of your child will need to take additional steps to secure paternity. It’s also important to note that simply adding the father’s name to your child’s birth certificate – absent any additional steps – does not establish paternity.
Establishing Paternity
Establishing Paternity Voluntarily
If you and your child’s father agree on paternity, you can complete an Acknowledgement of Paternity (AOP) together at the hospital when your child is born. You’ll both need to sign the document, but doing so at this juncture makes quick work of the paternity issue – requiring no additional steps.
You can also fill out an AOP later, but you’ll need to file the form to validate it – rather than simply completing it at the hospital. An AOP is a voluntary means of establishing paternity.
Adjudicating Paternity
If you are attempting to establish paternity or your child’s father is, but you’re not in agreement on the matter, you’ll need to adjudicate paternity through the court. The process begins with the parent attempting to establish paternity filing a Petition to Adjudicate Parentage. This will trigger a scheduled court proceeding that both of you are required to attend.
If you agree on the matter at this point, the court will enter the order necessary to establish your child’s paternity. If either of you doubts or denies paternity, however, the court will very likely order DNA testing. If this establishes that the man purported to be your child’s father actually is, the court will issue the paternity order.
It’s important to note that if the purported father fails to appear in court as required, the court has the power to enter what is known as a default order that identifies him as your child’s father. When there is an order to establish paternity, the court can issue custody, parenting time, and child support orders simultaneously.
Child Support
The State of Texas requires both parents to support their children financially through childhood. When it comes to unmarried mothers for whom paternity of their children hasn’t been established, child support can’t be ordered. Once the matter of your child’s paternity is established by law, you can seek child support from their father.
The factors included in the child support calculation process include all the following:
Each parent’s earnings, which are based on gross earnings minus allowed deductions
The child’s needs, including any special needs
The custody arrangements
Childcare and health insurance costs – along with who covers them
Each parent’s age, earning power, and overall financial situation
Travel expenses related to visitation
FAQ
Is DNA testing necessary for paternity to be established?
No, DNA testing is not necessary to establish paternity. There are specific situations in which paternity is presumed. Further, with enough evidence, the court can establish paternity through a court order.
I’m seeking child support as an unmarried mother. Do I need an attorney?
It is in your best interest – and in your child's best interest – to work closely with a practiced child custody attorney. The outcome of your case will play an crucial role in your financial future, and your dedicated attorney will help to ensure that your rights are well protected.
I’m unmarried, but there is no question about who my child’s father is. How do I establish paternity?
If you and your child’s father are in agreement on the matter, you can establish paternity voluntarily by filing an Acknowledgement of Paternity that you’ll both need to sign.
Consult with an Experienced Round Rock Child Custody Attorney Today
Brett Pritchard at The Law Office of Brett H. Pritchard is a compassionate Round Rock child custody attorney who is well versed in the legal challenges unmarried mothers often face concerning paternity, child custody arrangements, child support, and beyond and has the legal insight to help. Learn more by contacting or calling us at (254) 781-4222 and scheduling your free consultation today.
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