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Fathers' Rights: Children Born Out of Wedlock in Texas?

It is a weekly if not a daily occurrence that fathers reach out to us to find out what their rights are in Texas in regards to their children. In the state of Texas, family law protects a father’s paternal rights to his children.

If a couple has broken up and are actively pursuing a child custody case they must work with their respective attorneys to ascertain the father’s parental rights. Recently I had a father ask me in a consult about his rights to his child who had not born yet been born and the mother was currently married to another man.

Parental Rights?

Texas courts treat fathers as having an important role in the upbringing of a child. Under the family code it is presumed to be in the best of the children to have both parents active in the child life. This is true whether or not fathers were ever married to the child's mother.

Fathers are afforded both rights and duties under the Texas Family Code. In Texas, a man can be a father to a child if he is:

  1. presumed to be the father
  2. has acknowledged paternity
  3. legally determined to be the father
  4. is an adoptive father
  5. Assisted Reproduction
  6. Gestational Agreement

Presumed Father

Under the family code a man is presumed to be the father following situations:

  1. The man is married to the child’s mother, and the child is born during the marriage;
  2. The man was married to the child’s mother, and the child is born within 300 days after the marriage was terminated.
  3. The man married the child’s mother before the birth of the child in apparent compliance with the law (regardless of whether the marriage is or could be declared invalid), and the child is born during the invalid marriage or within 300 days after the marriage ended.
  4. The man married the child’s mother after the birth of the child in apparent compliance with the law, he voluntarily asserted his paternity of the child and (1) the assertion is in a record filed with the Bureau of Vital Statistics, (2) he is voluntarily named as the child’s father on the child’s birth certificate, or (3) he promised in a record to support the child as his own.
  5. He continuously lived in the same household with the child during the first two years of the child’s life, an

Acknowledged Father

A man can become a father if:

  1. he and the mother sign an acknowledgement of paternity with the intent to establish the man’s paternity.
  2. An acknowledgement of paternity is filed with the Bureau of Vital Statistics.

The signing of a valid acknowledgement of paternity adjudicates parentage and therefore, the acknowledged father has all of the rights and duties of a parent.

Legally Determined to be the Father

A man can become a father if his paternity is adjudicated and established through a lawsuit in court.


If a man can become a father through adoption

Assisted Reproduction

A man becomes a father if he consents to assisted reproduction by the mother.

Gestational Agreement

A man becomes a father if he is adjudicated to be the father of a child born to a gestational mother under a validated gestational agreement.

Proving Paternity when a Couple is Not Married

If a couple is married there is a legal presumption that the child is the husbands. However, if a pregnancy occurred out of wedlock, and if a man believes he is the biological father of that child, paternity must be established. This can be done by either:

  1. The mother, the biological father, and the husband could fill out an acknowledgement of paternity establishing the biological father as “the father “or
  2. A paternity case could be pursued through the court system

Children born out of Wedlock and Presumed Fathers

Under the Texas Family Code, while there is no time limitation for a suit to adjudicate parentage if the child has no presumed, alleged, or adjudicated father.

However, under the Texas Family Code Section 160.607(a) a suit adjudicate parentage of a child with a presumed father must be brought within four years of the anniversary of the child’s birth.

The four-year limitation may be overcome if:

  1. a presumed father did not live with the mother or engaged in sexual intercourse with her during the probable time of conception.
  2. The presumed father also must never have represented to others that the child was his own.

If a couple is married the presumption of paternity becomes more and more difficult to overcome the longer it is allowed to remain in place. For this reason, it is important to establish paternity as soon as possible through:

  1. genetic testing and
  2. the court system

Can Paternity be Established Prior to the Birth of a Child?

One of the things the father I met with wanted to know was could he force the mother to take a DNA test prior to child being born. Although DNA testing is medically possible before the birth of the child courts are reluctant to grant such a request because there is some risk to the mother and the child.

Without the mothers consent you will likely have to wait until the child is born. Recently I have written about the local rules in Harris County Family Courts and one of the courts I wrote about specifically said it would not grant such a request.

Parental Rights for Unborn Children

Mother’s rights as far as making decisions for a child before the child is born generally trump fathers. A mother generally will have the final say in:

  1. Birthing of a Child
  2. Prenatal Care
  3. Exclusive access to the child's well-being before birth

If an expectant mother and father are in disagreement about a decision regarding the unborn child prenatal there is little that can be done. If a father wants to find out information from the doctor regarding the mother or his unborn child he will need approval from the expectant mother. HIPAA rules dictate what information he has access to.

This means that without the mother's permission, fathers will have no access to information and will not be allowed to attend doctor's appointments, nor can they see test results.

Pregnancy and Divorce

Pregnancy does affect the divorce process. One question may people have asked is whether they can get divorce when a wife is pregnant in Texas. The answer is no. Texas divorce courts are going to make couples wait until the child is born.

Once the child is born then the court can make orders regarding the child and then the court will allow a divorce couple to finalize the divorce.


Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Other Articles you may be interested in:

  1. Terminating Parental Rights in Texas on the Absent Parent
  2. Voluntarily Relinquishing Your Parental Rights in Texas
  3. What rights does a father have in Texas?
  4. Mom Versus Dad Who Gets the rights? - Custodial Rights Vs. Non-Custodial Rights in Texas
  5. Husband Not the Father, what do I do in a Texas Divorce?
  6. I am not the biological father but I want to be - Paternity by Estoppel?
  7. Can my Texas Driver's License Be Suspended for Not paying Child Support?
  8. What do I do if I have overpaid child support in Texas?
  9. Child Custody Basics in Texas

Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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