Can I get child support and custody of my kids in Texas if we were never married?

I met with a mother recently who had questions about custody and child support for her children. One of her concerns was whether she and the father were never married and if that would make a difference?

Today’s blog post will be on child support and custody of children in the State of Texas. However, child support and custody of Children is one thing that a Texas divorce case handles. Marriage or divorce is not a requirement for getting court orders regarding children.

If not handled in a divorce, they are handled in a spate cause of action called a Paternity Case or a Suit Affecting Parent-Child Relationship “SAPCR.”

Father’s Rights vs. Mother’s Rights?

Sometimes you will hear a law firm marketing itself as a father’s rights or a mother’s law firm. Fathers and mothers do not have any special treatment under the law. The new standard is in the “best interest of the child.”

What fathers and mothers do have under the law is the right to ask the court to make orders regarding which of the parents will get to make decisions regarding their child and what visitation will look like between them. You can read about this more in our blog, “What rights does a father have in Texas?”

Before there are Court orders regarding a child in Texas, both parents are in a sort of limbo land regarding the rights of the child. One example of this is when parents start fighting, it is not uncommon for one parent to withhold visitation from the other parent. This can become a very frightening occurrence in which police are often called.

Generally, it is sometimes after this that a parent will reach out to my office. After the police have been called out, they refuse to take any action because it is a dispute between the parents, and there is no Court order saying who has a superior right to the child. The advice that police generally give both parents is to “get a lawyer.”

In Texas, unmarried parents have the same legal obligations to their children as married or divorced parents. If an unmarried couple separates, they also will need to go through the court system to get court orders regarding the children.

Paternity Case or a Suit Affecting Parent-Child Relationship

As mentioned earlier, this process is through either Paternity Cases or Suit Affecting Parent-Child Relationships. Both of these processes are very similar cases. The main difference is that the father has already admitted paternity in a Suit Affecting Parent-Child Relationship.

This could have been done by signing an “Acknowledgement of Paternity” either in the hospital or sometime after. In a Paternity Case, one of the things that will need to be done is to establish the father’s paternity by having him take a DNA test.

This is one way where marriage makes a difference in establishing the paternity of children. Under the Texas Family Code section 160.204, a man is presumed to be the father of the children, “If the man is married to the mother and the child is born during the marriage.”

Custody or Conservatorship of the Children

In Texas, we do not have custody. We have conservatorship. They are similar and sometimes used interchangeably by Texas lawyers. However, when you get to court, the Judge will be quick to remind you that it is called conservatorship in Texas.

When deciding who will be the “Primary Conservator” of the children (the parent who gets to say where the children live and to receive child support), a court looks at several factors. These factors include:

The child’s age and preferences
The relationship between the child and parents
The relationship between the parents
The child’s developmental, emotional, and health needs
Each parent’s financial situation
The living situations of each parent
The parents’ health
Any history of abuse or neglect

While the court’s decision, a Trial will determine who will be the “Primary Parent,” that decision is not necessarily permanent. Should there be a substantial change in circumstances, either parent may petition the courts for a modification.

I like to tell my clients nothing is done regarding the children until they turn 18 or graduate high school, whichever comes later.

Child Support

The calculation for child support is not different for a divorcing couples and couples who have never been married. Generally, the way it works when calculating child support is that it is 20% of the first child's net resources, then an additional 5% for every child after that who is before the court.

If the party paying child support has children from another relationship who they are supporting, then they may be able to have a decrease in the amount of