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Can the father take the child if not on the birth certificate?

Statistics would tell us that more children are being born out of relationships where the parents are not married than ever before in the history of our country. While I'm not here to comment on that trend or anything related to it I would like to offer some information on what this may mean for the nature of your family if you find yourself in a situation where you have had a child and are not married to that child's other parent. From my experience, mothers in this circumstance are especially concerned about what rights the child's father has to make decisions about the child's future if he is not on that child's birth certificate and is not married to her. 

The simple reality of the situation is that you need to be aware of these elements to a case if you are not married to your child's father. The law in Texas makes all this much more straightforward and simple for you and your child's father if you all are married. If you choose to have a child well not married then there are special considerations for you to take under advisement. The future of your child in your relationship with him or her may be at stake if he failed to do so. For that reason, I would like to walk you through several circumstances regarding raising a child with the person that you are not married to. 

What is the child custody circumstance when you and your child's father are not married? 

When you gave birth to your child the law in Texas holds that you automatically have legal and physical custody of him or her. This is true even though you and your child's father were not married at the time your child was born. This is also true whether or not your child's father appears on the birth certificate for him or her. There is no doubt who the mother of a child is so your parental rights in terms of being able to take legal and physical custody of your child vest automatically in you when your child is born. You probably recall registrars or other employees at the hospital where your child was born talking to you about getting paperwork set up for your child. 

We have already discussed two terms that demand an explanation. The first term that I think we need to walk through right now is legal custody. Legal custody refers to when a parent like yourself has the right to make important decisions regarding your child's life in both the short and long term. We're talking about factors like your child's health, education, religious practices if any as well as long-term considerations like whether or not he or she may get married before the age of 18. It is typical in Texas for parents to share legal custody are their child whether they are married, divorced, or were never married at all. 

Next, we have physical custody to consider. When a parent like yourself has physical custody of a child that means that you have the right to have your child live with you. In the early stages of your child's life, you as the mother will certainly have physical custody of your child. The reality of the circumstances is that your child will require you to feed him or her regularly for the first year of his or her life. As a result, you won't be able to be far from your child for very long. Depending on your marital circumstances your child's father may also have physical custody of him or her. All of this is made much more simple if your child's father is legally determined to be his or her parent. 

Establishing paternity for Texas fathers 

If your child's father does not appear on the child's birth certificate and is not married to you then he is in a position where he needs to be able to establish paternity legally. The law in Texas is such that even if this man is your child's biological father that does not necessarily confer upon him parental rights in a legal sense. If you and your child's father are married at the time of your child's birth then he will automatically have parental rights to that child. As I alluded to in the opening of today's blog post, however, that is not the case for unmarried parents. Unless you voluntarily agree to his being that child's parent then he must go through a process to become the legal parent of your child. 

If he does not, he will have no rights when it comes to being able to make decisions on behalf of your children like those described above or two have your child. When it comes to parenting, if you have no right to make decisions for your child and are not able to spend time with your child then you have no rights at all. Even if your child were to live with you on a full-time basis Your child's father would still be able to share in the time in decision-making for your child with you. If he fails to establish paternity within a certain period he may lose the right to do so forever. 

At the same time, if your child's father is never legally established as apparent to him or her this is not a good thing for you, either. First and foremost, a parent in Texas has a legal obligation to support his or her child. If the child is not live with a parent on a full-time basis then it is typical that that child's parent will be required to paying child support to the primary conservator. However, if your child's father is never legally adjudicated to be that child's parent then you have no right to ask him for child support. This means that you will be solely responsible for caring for your child other than being provided with the basics and things like health insurance by the state of Texas. This is not a great position for you to be in especially as we are coming into a full year of this pandemic. 

The other thing that I will talk to mothers about regarding parenting a child in these circumstances is that although you may feel like you are better off not having your child's father in his or her life for various reasons this is not likely going to be a good long-term play for you. At some point, you are going to want to have another parent for your child to lean on for support when it comes to going to the process of raising him or her. It should be fairly obvious to you at this point that raising a child is not easy and that having an extra hand to shoulder some of that burden is undoubtedly a good thing. While you and your child's father may not see eye to eye in various subjects now here's assistance and raising your child will be crucial in the future. Therefore, you should be interested in having him declared to be your child's legal father even if he is not. 

What can an unmarried father do in Texas to gain custody rights over his child?

Being able to establish paternity to a child is crucial if you are a parent who is not married to your child's mother. Any kind of moral implications aside, there are legal reasons why you need to be adjudicated as that child's father. Not the least of which is something that we have already discussed: if you fail to take legal responsibility for that child early on you may lose the right to do so it may never be in a position to build a relationship with him or her moving forward. 

The most simple and straightforward method for you to gain legal custody of your child is to sign an acknowledgment of paternity. This form will be made available to you in the hospital where your child was born. If it is not, then you should ask a nurse or a registrar at the hospital for a copy to complete and provide back to them. If you are not able to provide the form to anyone at the hospital you can find the form online and then send it to the Bureau of Vital Statistics in Austin. 

An acknowledgment of paternity is a document that you and your child's mother would sign that certifies that you are your child's biological father. Typically, this form comes into play when you and your child's mother agree that you are the child's father. If there is any dispute about this, you need to be aware that the form has no legal significance without those dual signatures. If you find yourself in that situation then you will need to proceed towards the second method of being adjudicated as the legal father of your child. 

Otherwise, you could get a DNA test to establish your paternity. This means going to a laboratory approved by a family court and undergoing genetic testing that would show that you are the father to your child. Typically, this step would follow the filing of a paternity lawsuit in which you are seeking to be named as the legal father to your child. The formal name of this lawsuit is a suit to adjudicate paternity or parentage. A DNA test is required to be declared as the legal father to your child. 

As part of this lawsuit, your child's mother and your child will be required to submit saliva samples to the same facility that is administering your DNA testing. If your child's mother does not consent to her or the child being tested you will need to file a motion with the court to set that process into motion. If you are planning on filing a lawsuit to adjudicate the parentage of your child then I recommend you contact an experienced family law attorney before doing so. 

Risks for a father who does not custody rights over his child

You and your child's mother may have had conversations previously that have put your mind at ease as far as being comfortable with not being declared to be the legal parent to your child. Your name does not appear on their birth certificate and you have no court orders that vest any custody rights in you. Otherwise, you can spend time with him or her and can weigh into the decision making as far as his or her life is concerned. 

However, all of this is based on the goodwill of your child's mother. If she suddenly stopped making the kids available for you to see, if she were to take away your time with them or even move away then you would be in a really bad situation. There is nothing legally you could do to stop her from denying you access to the kids. There is nothing legally you could do to stop her from moving to another city or state. Remember that if you are not legally declared to your child's father then you have no formally defined role in their life. 

Another factor that you need to consider is the relationship that your family has with your child. If you have the opportunity to expose your family to your child and have them develop a relationship with him or her then this situation extends beyond your immediate relationship with your child. Your family and your child are developing bonds that can be severed forever if you choose to not pursue legal means to be determined by the father of your child. In this sort of situation, I would consider the implications of your decision beyond your immediate circumstances. 

What does custody mean about you and your child?

Keep in mind that by filing a suit to be declared the legal father to your child then you are enabling yourself to be a force for good in the life of your child. By being declared to be a legal parent to your child then you can make decisions for him or her as well as bear responsibility for providing him or her with the essentials of life. At its core, this is what being a parent is: being a factor in the upbringing of your child. 

Rights and duties extend to the basics of child-rearing. Rights include medical, educational, and other important areas of your child's life where you can make decisions for him or her. Duties refer to being required by the state to provide or contribute to providing shelter, food, health care, and education, and things of that nature for your child. While many parents in family law cases focus on their time with the children primarily, I would argue that rights and duties are the most important part of a family law case involving children. 

Being able to have your children is another component of a custody case. Again, if you are not legally declared to be your child's father then you have no rights associated with spending time with your child in your home. Again, these are the central aspects of parenting and are critical to being able to build a relationship with him or her. 

Finally, if you are determined to be the legal father to your child then you would have the right to pay support to your child's mother. This is important because having a court order that specifies the amount of child support that you are responsible for paying eliminates a major point of conflict for unmarried parents.  For instance, you may have already experienced a situation where one month your child's mother asks you for $500 in support, and then the following month she asks you for $1500. When you asked her about this she may have told you that unless you pay the money you will not be able to see your child. 

This is a less than ideal situation. Even if you are not excited about the possibility of paying money to your child's mother, you want to be able to see your child regardless of child support or any other consideration. Going to court may be troublesome to an extent but it is the most direct way to establish your relationship with your child for now and into the future. Do not put your relationship with him or her at risk. Do not put your ability to raise your child at risk. Follow through with these steps by contacting an experienced family law attorney today. 

Questions about the material contained in today's blog post? 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, or via video. These consultations are a great opportunity for you to learn more about the world of Texas family law as well as about the circumstances that impact you and your family. 

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