Unmarried parents have some additional considerations to bear in mind when going through a Texas child custody case. We are going to walk through a handful of those considerations today here on the blog for the Law Office of Bryan Fagan. With unmarried parents overtaking married parents in terms of sheer numbers these days information like this needs to be available to anyone out there who is involved in a child custody case or may become involved in a child custody case soon. Knowledge is power so read this blog post to power up before you step into a contested child custody case.
Right off the bat, unmarried parents cannot go through a divorce. That may be obvious to you, but I think that it bears mentioning here. Part of a divorce with children is child custody components which will be what you go through in a child custody case. However, if you are breaking up with a significant other, moving out of a home with your child's other parent, or otherwise ending a relationship that is not a marriage in conjunction with this child custody case you should not expect to be able to divide up any property or receive alimony as a result of the case.
You and your partner or co-parent will need to determine how to divide up your property on your own. There is no remedy under the Texas Family Code when it comes to unmarried people being able to go to a family court to divide up property. If you live in a home that you purchased with another adult to whom you are not married then you all will need to sort out how to divide up the equity in the home. This is an issue that unmarried people come to our attorneys with questions about all the time. Consider a situation where you put some money down with your child's father to purchase the house. His credit is better than yours, so your name does not appear on the title of the home or on the mortgage itself. In the eyes of the law, you do not own this house.
This same situation does happen in the world of divorce. Married people, however, do not have to have their name on the title or mortgage to be compensated at the time of a divorce or the sale of the house. To that point, if you and your significant other were married and decided to get divorced then he and you would need to negotiate your way through how the house would be handled. It could be sold and the equity in the house split that way. You could remain in the house and take responsibility for the payments, or your spouse could do the same. Either way, being married would protect your rights to community property division in the home even if your name did not appear on the title or the loan.
In a situation where you and your significant other are unmarried, there are no such provisions available in the Texas Family Code that will protect you. There may be some civil remedies available to you that you can pursue but that would be outside the world of Texas family law. The money that you put into a down payment on the home, the contributions that you made to make mortgage payments, and generally pay for upkeep on the house would not be credited to you. A judge in a Texas child custody case would not be able to protect you in a situation like this. For this reason, it is somewhat dangerous for two unmarried people to buy a home together. There are ways to limit your liability in a situation like this but that is not going to be a part of today's blog post. You can start by making sure your name appears on the title of the house and being a part of the closing process.
Spousal maintenance and contractual alimony are also not going to be a part of your child custody case. Spousal maintenance and contractual alimony are types of post-divorce spousal support that can be paid from one spouse to another in certain situations. Spousal maintenance can only be ordered by a judge after a trial. Contractual alimony is agreed to by spouses before a trial. Either way, neither of these concepts applies if you and your significant other are not married. While you and your child’s co-parent could, hypothetically, figure out some plan for financial assistance after you go your separate ways this would not be a legal contract likely and would be outside the scope of your child custody case. Again, this is another reason why unmarried persons going through a breakup or relationship change are less protected financially and otherwise than married people.
Considerations for unmarried parents in a child custody scenario
From the moment that your child is born to unmarried parents the circumstances of that birth are different for you and your co-parent as opposed to married people. When a child is born to a married woman, there is a legal presumption that attaches that states that the woman's husband is presumed to be the father of the child. An additional presumption applies to the birth of a child up to 300 days after a divorce between the woman and her ex-husband. Namely, if a woman gives birth to a child and she was divorced fewer than 300 days earlier then the same presumption applies to the ex-husband being the presumed father. The husband would need to deny paternity, another man would need to acknowledge paternity, and a court hearing may need to be held to rebut that presumption. However, in most circumstances involving married people the parental presumption would apply and a father would not need to do anything to formally acknowledge paternity.
Let’s look at your situation if you are an unmarried man whose significant other/partner gave birth to a child that you believe to be your biological offspring. No presumption of paternity attaches to a situation involving an unmarried man and a woman who gives birth to a child that he believes is his. If that is the situation that you find yourself in, you would need to formally and legally acknowledge paternity. This can be done through filing a family law case in which you assert paternity but that is a longer, more expensive, and more cumbersome process. Rather, the most direct way to assert paternity of this child is via an Acknowledgment of Paternity, also known as an AOP.
An AOP can be obtained through the hospital staff once the child is born. You can also locate an AOP before the birth of the child and assert paternity that way. Either way, you would sign the AOP and would ask the child's mother to sign. Once an AOP is signed by both you and the child's mother you would send it to the Bureau of Vital Statistics in Austin. Once it is processed you would be the legal father of this child. That means that you would have the ability to have custody rights and duties awarded to you and could be ordered to pay child support on behalf of the child. In any event, you would be the legal father to that child in the same way that a married father would be. At that stage, this is not much difference between your situation and that of a married man.
You will need to have your paternity declared by the court before being able to have child support assessed against you or to gain conservatorship rights and duties. Again, this can be done through the AOP process or can be requested in an initial child custody case. The court would order DNA testing to be undertaken and the results of the testing would in large part determine paternity. This may seem like a straightforward process for determining paternity but if there is another man disputing paternity or the child's mother even disputes paternity then you are in a position where this may get more complicated than you would like. In that situation, it would be advantageous for you to have an experienced attorney with the Law Office of Bryan Fagan assisting you throughout the process.
Visitation and possession of the child
Once paternity has been established you have cleared the first major hurdle of an unmarried father's situation. Next, we need to look at your case from the perspective of a parent who needs to have possession, visitation, and conservatorship all established for their child. We can start with conservatorship first since this is an often-overlooked part of a family law case that is nonetheless extremely important. Conservatorship refers to the rights and duties that one person has regarding another. In this context, it is the rights and duties that you have about your child. These rights and duties are inherent in the parent-child relationship but can be divided up between parents in different ways. Your child custody case will seek to divide up those rights and duties according to the wishes of you and your co-parent.
Rights to a child mean the right to make decisions on behalf of your child in several areas. Most importantly those areas include their education, healthcare, and mental health. Rights are typically held exclusively, independently, and jointly with a co-parent. You two will have the opportunity to negotiate on this subject so that these rights and duties can be divided up in a way that is in the best interests of your child. If you two are not able to divide up those rights successfully then the family court judge will do so Pay attention to the details when it comes to this subject. Many people will overlook issues regarding the rights of your child in favor of time with your child. However, being a parent means taking these responsibilities seriously and it is not a good thing to cede rights to your co-parent that should be yours under most circumstances.
Duties mean the things that you are responsible for providing to your child such as a place to live, food to eat, etc. These duties are held in combination with your co-parent, as well. The duty to pay and receive child support is probably among the most notable duties that are included in the conservatorship realm. We will discuss child support in greater detail in a moment, but the fact remains that you will have rights and duties assigned to you concerning your child now that paternity has been established. It is up to you to take advantage of those rights and duties as a parent moving forward.
Child support issues are among the most hotly contested in many if not most child custody cases. Paying money for the support of your child but having to do so through your co-parent can be a bitter pill to swallow for some parents. The idea of sending your co-parent money each month and then having no control over how he or she spends the money can be infuriating. However, I would approach the subject from another perspective as an optimist. Here is how I think a child support order as part of a child custody case may work out to your advantage in the long run.
Many unmarried parents who go through a child custody case will paint a familiar picture of life before the case begins. The person (usually a father) will tell us that their child's mother has demanded varying amounts of child support over the years. Some months she will ask for less money than the prior month. In other months she will ask for much more money than in prior months. These increases and decreases will come about seemingly with no rhyme or reason. However, at the end of the day, you will be expected to pay her what she is asking for or suffer the consequences of not doing so.
Often, the consequence of not paying the child support that she asks for is that you are not able to see your child. She makes it a condition precedent that unless you pay your child support you are not able to see the child. This is an undesirable outcome, to say the least. Your co-parent is essentially holding you hostage by forcing you to pay child support or not see your child. Of course, you want to support your child and have a relationship with him or her. However, you may be wondering whether there is any other way to set up this arrangement, so you do not feel like you are at the mercy of your co-parent every time you turn around.
This is where I think that having a child support order can be of great benefit to you as an unmarried parent of a child. You are in the group of people who are most susceptible to this type of arrangement being instituted. Married men can find themselves in a similar situation, but I find that unmarried fathers typically find themselves in this type of situation more than married fathers do. As a result, you will want to watch out for this happening to you. However, once you become involved in a family law case the likelihood of this happening decreases significantly. , once you become involved in the family case you will have the ability to negotiate for child support and then have those ordered into the record. That way there is no doubt about what you pay each month in child support.
Your co-parent will not be able to use your children as bargaining chips any longer when it comes to either seeing your children or paying child support. The law in Texas is that your co-parent cannot withhold visitation with the kids because you have not paid child support. By the same token, you cannot withhold child support because you want to see your children more or for any other similar reason. Your behavior should be kept in bounds more now that there is a court order in place. The predictability of life under a court order may be a much better arrangement for you given what you used to have to deal with under life without one.
In any event, when you are getting involved in a child custody case it is wise to have the advice and perspective of an attorney to assist you. Working with an experienced family law attorney can help you to set goals, create a game plan for achieving those goals and minimize wasted time and money.
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 about how your family's circumstances may be impacted by the filing of a divorce or child custody case.