Child custody for unmarried parents

Child Custody: What to Expect if You’re Unmarried in Texas

Jad J. Stepp

Jad J. Stepp is the managing shareholder of Stepp & Sullivan, P.C., a Houston-based firm that focuses on probate and elder law matters, as well as estate planning, personal injury, aviation, and maritime litigation. For over 35 years he has been trying lawsuits in both federal and state court and has been the lead trial lawyer in complex litigation in many areas.
Jad J. Stepp

The number of children living with unmarried parents is on the rise across America. According to the Pew Research Center, 32% of U.S. children are living with an unmarried parent as of 2017. Unmarried couples who have children in Texas face challenges regarding child custody that married couples do not. If you’re an unmarried parent in Houston, a family law attorney with Stepp & Sullivan, PC may be able to help you reach important decisions that can protect your interests and those of your child.

When Parents are Unmarried, Who Has Child Custody?

In Texas, the mother automatically has legal and physical custody of a child when the two parents are unmarried, even if the father’s name is on the birth certificate. The mother is granted both legal and physical custody by default when a child is born.

Legal custody: The parent has the right to make major decisions regarding the child’s healthcare, education, and religious upbringing, among other factors. In Texas, both parents may share legal custody.

Physical custody: Physical custody is the right of the parent to have their child live with them. Physical custody may be granted to one or both parents.

Fathers who wish to have parental rights must first establish paternity. Those who fail to do so have essentially no rights when it comes to child custody and visitation. Likewise, the legal parent has no avenue through which to obtain child support. 

What Should an Unmarried Father in Texas Do to Gain Child Custody?

For an unmarried father to receive parental rights in Texas, he must establish paternity in one of two ways:

  1. Sign an Acknowledgement of Paternity or AOP. An AOP is a legal form the child’s father and mother must sign that states the man is the child’s genetic father. This may be the easiest way to establish paternity in situations where both parents agree on the father’s identity. 
  2. Get a DNA test. Fathers can file a paternity lawsuit in court. A paternity lawsuit, or a Suit to Adjudicate Parentage, will require the man alleging to be the father to take a DNA test. The mother of the child and the child will also be subjected to swabbing. The father claiming paternity will need a court order to get a mother who does not consent to the test to comply.

After establishing paternity, the father will need another court order to establish custody rights. This court order is necessary for the father to have any rights over the child.

Why Should I Establish Paternity if I’m an Unmarried Father?

Unless a father establishes legal parentage, he has no right to custody or visitation. This means that the mother could take the child anywhere — even outside of the country — without the other parent’s consent. The mother may also limit visitation for the father and the father’s family. 

In a child custody case in which the child only has one legal parent, the legal parent retains all legal and physical custody of the child until the other parent establishes parentage. Establishing parentage and rights to visitation are crucial for maintaining a healthy bond between the child and his or her father.

What Unmarried Parents Need to Know to Establish Custody

Parents need to have a court order that addresses all the issues brought up in a custody arrangement, including:

  • Conservatorship
  • Rights and Duties
  • Possession
  • Access
  • Support

“Conservatorship” is the legal term that addresses the legal and physical aspects of sharing children when the parties are no longer or have never been married. It also allocates the rights and duties regarding the child, including the right to establish the child’s primary residence. 

The “rights and duties” in a custody arrangement refer to specific actions that may be taken on behalf of one parent. They include the right to consent to medical, psychological, and dental treatment, and decisions regarding the child’s education.

“Possession” and “access” refer to the actual time parents share with their children and are commonly referred to as visitation. 

Unmarried parents who have not established child custody will want to work with a knowledgeable Houston family lawyer in order to protect their interests and those of the child. 

Looking Out for You and Your Children in Houston Family Law Matters

Texas family laws can be complex, and the way that you set up child custody and visitation will impact everything about your relationship with your child, including how often you get to see him or her and how much child support you will need to pay your child’s mother or father. When seeking a competent family lawyer in Texas, look no further than Stepp & Sullivan, PC.

Our family lawyers have more than 70 years of experience helping mothers and fathers make the best decisions for themselves and their families. We are a full-service law firm that delivers a client-focused and results-driven approach to resolving legal matters involving children in Houston. Call (713) 336-7200 for a free consultation or complete our contact form. An attorney with our firm will be in touch to discuss your child custody matter.

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