Non-Custodial Parent Rights in Texas

Being a parent is tough. Don’t get me wrong- it is also rewarding, fun, and a great experience. Being a parent means putting the best interests of another person in front of yourself. Not only when it is easy or advantageous to you but when it is difficult, and you would like to do anything but that. This is parenting. If you can do that and do it well then, your child has a good chance to grow up to be a success. However, it is that you define success. If not, then some consequences are in play for a parent who is not willing to put the best interests of their child first. 

I don’t know your situation when it comes to how you parent and what sort of relationship you have with your child. One of the most common concerns for a parent with whom their child does not reside primarily is related to losing the chance at a potential relationship with the child in the future. On top of that, there may be additional concerns about finances and things of this nature. Having to pay child support, the threat of needing to come back to child custody court in the future. These are all legitimate concerns that you may have in a situation like this. 

Are you a noncustodial parent?

Before we go any further, I think it is worthwhile to be able to discuss what a noncustodial parent is. The parent who does not have primary custody of your child is the noncustodial parent. However, just because your child does not live with you full-time does not mean that you do not have any rights over your child. Regardless of the specific role that the law carves out for you the time that you spend with your child is critical to their development. In large part, we will be talking about the importance of your relationship with your child in this blog post today.

The managing conservator does exactly what the name would seem to indicate- manage the daily affairs of your child. This parent is also known as the custodial parent. Getting the child to school, preparing meals, taking him to the doctor, etc. These are the daily responsibilities of a parent. Importantly, the managing conservator also can determine the primary residence of the child. This is a big responsibility and is frequently one that is debated in divorce and child custody cases. One of the most frequently cited reasons why people end up going to contested trials in child custody or divorce cases is over this issue

The managing conservator of the kids has the right to spend more time with the children as opposed to the possessory conservator. On the other hand, if you end up as the possessory conservator of your child that does not mean that you will be without rights at all. Rather, while you will be able to spend less time with your child than the other parent you will still retain rights and duties to your child under a joint managing conservatorship. You and your co-parent can divide up those rights and duties however you would like but ultimately the decisions should be made based on what is in the best interests of your child. That is the standard a judge will use if you end up going to a hearing or trial in your family law case. 

There is a belief that some have that fathers can only end up as noncustodial parents and have no opportunity to become custodial parents in a family law case. This is not true. Many fathers are named as custodial parents in divorce or child custody cases. The key to this discussion is that the fathers must be set up for success in terms of their relationship with the child. If you are a dad who has always been around the child, spent time with him, and generally done what you needed to do as far as balancing life, work, and your child then you have a good chance to be named as the custodial parent to your child. However, if you plan to start acting like Father of the Year as soon as your divorce begins then you will be disappointed to learn that a family court judge will be able to see through your plan. There is never a bad time to start being a “present” father but when the family law case is beginning is not ideal if you want to be named as the custodial parent. 

Keep in mind, however, that most noncustodial parents are fathers. This is true for several reasons not the least of which is that fathers are more likely than mothers to have jobs that require them to work outside the home. Either remote work or work done with the family makes it simpler to be present for the children when they get home from school or need a ride to soccer practice. This doesn’t mean that being a “stay-at-home parent” is easy. It also doesn’t mean that if you are a dad who is working outside the home you are neglecting your child. Rather, it means that you are taking on a role within your family that makes sense for your circumstances and the needs of your child. However, if you are a dad reading this then you need to know that this is something that will impact your ability to become a custodial parent. Consider your situation before taking different positions in your family law case and you are likelier to reach a fair result.

What to do when you receive a notice of hearing

Many times, as a father you will not have much of a role in the life of your child especially when he is young. Your child’s mother may have alerted you to where the child was going to be born and even invited you into the hospital room. However, in some situations, you may not have had much contact with the child after that. It’s true that for many children the time after their birth is mostly spent with mom- eating, sleeping, going to the bathroom, and doing not much else. While a dad can always play a major role in the life of a child being a newborn makes bonding difficult for many fathers. However, that does not mean that you shouldn’t try to be a part of your child’s life as soon as he is born. 

In some circumstances, you may be able to see your child occasionally but the contact between you and the mother could have become sparser in the weeks since your child was born. She is understandably in a position where she may be overwhelmed with the responsibilities of motherhood, and you may not be at the front of her mind. However, that does not mean that you should not attempt to make contact and do what you need to to put yourself on her radar. However, you will know the circumstances that you find yourself in much better than I do (obviously) and you should think about them before putting yourself out there as far as time with the child is concerned. 

What ends up happening much of the time in this type of situation is that your child’s mother may realize that she needs financial help during this time and will be filing a child support case. A child support case can establish things like the visitation or may even need to establish paternity first if that has not been done. Fathers who are not married to the mothers of their children have no automatic presumption of paternity. Therefore, you must go to greater lengths to put yourself in a position to be granted conservatorship rights and duties as well as formal visitation time. It would not hurt to call the mother and talk to her about what she needs at this time. You may be able to pick up diapers, wipes, food for mom, or something else the baby needs. The more you can integrate yourself into the life of your child the better the likelihood that you will be able to establish yourself as a conservator early in their life. 

What this also means is that there is a chance that you will, sooner than later, be asked to attend a hearing regarding child support, visitation, or any other issue in the world of Texas family law. It does not matter that you have never been to court before. It does not matter if you have not even acknowledged the paternity of the child yet. As soon as that child is born you or the child’s mother can file a petition to establish paternity and to set up child support and visitation. The key to the whole issue is that you will need to be prepared to respond to a court summons. 

Sometimes we get letters in the mail and just put them to the side even though we know that it is something that we are going to need to deal with sooner rather than later. This could not be truer for many letters that we get these days. However, if you were to be handed a court summons from a process server this is not the attitude that you should take. Rather, you should open the envelope or review the documents that were just provided to you. That way you can know just what is going on in this case. You may need to plan for a hearing or ask to take off from work to be present for any potential hearing. Opening the letter and finding out that you have a hearing on the day after this one would not be an ideal position to put yourself in. Rather, you want to have as much time as possible to prepare for a  hearing and to also look at your options when it comes to hiring an attorney.

If this is all catching you by surprise, then you are better off preparing with the assistance of an attorney. Not just any attorney, either. An attorney who practices family law can prepare you for what you can encounter in your case. If nothing else, you need to be present for the hearing. If everything will work out ok without going to the hearing is a mistake. Rather, even if you have no idea what is going on or what the hearing is going to be about you should plan on attending the hearing. You should go to a hearing that you are not prepared for that to not attend. You can always try to ask to postpone the hearing to hire an attorney or simply to prepare better. Your co-parent may have even served you too late in the process and not allowed you sufficient time for the hearing to even happen. However, you would never know about either of these things unless you attend the hearing. 

Not attending the hearing is a bad idea- to say the least. A judge your co-parent can establish orders without you if you do not attend. There is no guarantee of this happening, but it is a possibility. If you are not yet the legal father to a child a court can establish, you as the legal father if you choose not to attend the hearing. This can be done without you signing an acknowledgment of paternity or submitting a DNA sample. 

A court will need to establish paternity in your name before assessing child support against you. This can also happen in this type of hearing. Child support for one child tends to be 20% of your net monthly income. You need to be able to attend a hearing to contest paternity and make arguments regarding child support and things of that nature. If you have paystubs, tax returns, and other financial documents to bring to the hearing that can strengthen the arguments that you plan on making. 

What you can do, if you would like to be able to declare that you believe that you are the father of the child, is to fill out an Acknowledgment of Paternity. You can download the form online or even ask the hospital where your child is born to provide you with one. This will need to be completed before your name goes on the birth certificate of the child. For child support to be assessed we have already talked about how paternity will first need to be established. Additionally, if you can get your name on the birth certificate that does not establish paternity for child support, custody, and visitation. You would still need to go through the process of going to court to have this done or sign an Acknowledgment of Paternity along with the child’s mother. 

Before you sign anything though it is a good idea to have a full understanding of what it is that you are signing. Unless you are sure that you are the father of this child then you should not sign an Acknowledgment of Paternity. Doing so can be undone but it will take effort, time, and money. Rather than putting yourself in a position where you need to go back to court later, it is a better idea for you to be able to think about what you are signing before you choose to do so. If you go to a meeting with the Office of the Attorney General, then you can sign papers there that will have the same impact as a court order. 

Bear in mind that overturning a document that you have signed can be done but as we mentioned a moment ago it can take time. You will likely need to hire a lawyer to assist you in doing so. This is important to note as you begin to consider the legal ramifications of your life alongside your new child. An attorney may seem like an unnecessary expense, but you can bet that your co-parent will have had someone speak to her about the situation previously or she may have hired an attorney herself. This puts you in a position where it is in your best interests, and the best interests of your child, for you to hire an attorney as well. You can look at the situation as being one where hiring an attorney is a short-term investment into your long-term future. Whatever situation you find yourself in it is a great idea to contact the Law Office of Bryan Fagan to schedule a free-of-charge consultation today. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family circumstances may be impacted by the filing of a divorce or child custody case. 

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