In the state of Texas, there are two types of custody, which include physical custody and legal custody. Legal custody refers to the right and responsibility of a parent to make important decisions regarding their child’s education, health, religion, and overall welfare.
Legal custody may either be sole legal custody, where one parent has complete authority to make all of the major decisions regarding the child, or joint legal custody, where both parents have equal or shared rights to make decisions regarding the child.
Physical custody refers to the right of a parent to have physical possession of their child. In other words, physical custody refers to who the child resides with and for how long they reside with that parent.
Generally speaking, when a child primarily resides with one parent more than the other, then the parent who has greater physical custody will be known as the primary custodial parent. Parents may also share joint physical custody of their child in the event of a separation.
It is important to note that child custody laws in Texas differ between married and unmarried parents. In Texas, if a child’s parents are unmarried, the mother automatically has both physical and legal custody rights over the child. This is true even if the father’s name is on the birth certificate.
As such, unmarried fathers have extremely limited rights in cases where the parties are unmarried at the time of the child’s birth. If the father wishes to gain custody of their child, he must petition the courts for custody.
Importantly, paternity is not automatically established when the parents are unmarried. However, once paternity is established by the father, then the father may seek to pursue custody of their child in cases of separation from the child’s mother.
The simplest way for a father of a child to establish paternity is by signing a voluntary acknowledgement of paternity. In Texas, a mother can also sign an Acknowledgment of Paternity (“AOP”) form to acknowledge the child’s genetic father. Once completed and filed with the Texas Vital Statistics Unit, the father becomes the child’s legal father with all parental rights and duties.
Can an Unmarried Father Take a Child from the Mother?
In short, it depends on the facts and circumstances of each case. Historically, family laws were stacked against fathers who sought physical and legal custody of their children, especially in cases where they were seeking sole custody. However, both state family laws and courts have now become more unbiased as to their perspective on granting a father legal or physical custody of their child.
It is important to note that child custody decisions will always be based on the child’s best interest standard in Texas. The child’s best interest standard is a legal standard that prioritizes a child’s welfare over the wants and desires of the child’s parents.
This means that in Texas what is considered to be best for the child will always be placed over the wants and needs of the parents involved. In fact, family law courts in Texas will only make custody decisions based on what is best for the child. Specifically, the child’s best interest standard may be found in Texas Family Code Section 153.
Examples of common factors used in evaluating a child’s best interest when it comes to determining custody in Texas include:
- Each parent’s relationship with their child;
- Each parent’s history of interactions with their child;
- Whether or not one parent has been acting as the child’s primary caretaker and for how long they have been the primary caretaker;
- The child’s background, such as their attachment and connections to their home, neighborhood, family in the area, and school;
- The mental and physical health of each parent;
- The mental and physical health of the child;
- Each parent’s financial state and their ability to provide for their child;
- Each parent’s residence, including whether or not the child has their own room, etc.;
- Whether or not the child has any special needs, such as physical health, mental, or special medical needs;
- The wishes of the parents, if they have both agreed to a custody arrangement; and
- The child’s preference, if the child is old enough and capable of stating a preference.
- Texas law states that if a child is at least 12 years old, a judge presiding over a custody matter may take the child’s preferences into account.
What Will Likely Happen if There Is a Custody Battle Between Unmarried Parents?
As far as what is likely to happen if there is a custody battle between unmarried parents, the child custody laws for unmarried parents in Texas will play a large role. For example, if paternity has not been established for the father, then the custody of the child will automatically go to the mother.
However, if paternity has been established, then the child’s best interest standard will be utilized to determine the child’s best interest. Importantly, paternity may also be contested in some cases, such as the presumed father of the child filing a denial of paternity.
In general, it is presumed to be in the best interests of a child to spend equal time with both of their parents. In other words, joint physical and legal custody is often presumed to be in the child’s best interests and a favored arrangement by judges.
A local attorney in Texas is often necessary in order to ensure that a parent’s legal rights are protected during a custody fight. In order to avoid a lengthy and costly custody battle, it is important for both parents to do their best to remain amicable and willing to compromise when determining their child’s custody. An attorney can help a parent avoid a lengthy and expensive custody battle and help find a custody arrangement that works for both parties.
What Are Some Other Issues That Unmarried Parents May Experience?
There are many issues that unmarried parents may experience when it comes to their children. Overall, the biggest issue that will cause issues for unmarried parents would be unestablished paternity. Once again, without signing an acknowledgement of paternity, determining child custody will be a complicated and often drawn-out issue.
This is because the father will often have to take court action or be ordered to take action in order to determine paternity through court-ordered DNA testing. After that entire process is completed, then a custody battle will often ensue between the two parents.
Establishing paternity is also important for a variety of other matters concerning a child, such as tax implications, decision-making for the child, and setting up child support. In Texas, the primary custodial parent has the right to receive financial support in the form of child support from the non-custodial parent. This is true even when the parents are unmarried.
Another common issue is if one of the unmarried parents lives outside of Texas. Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the child’s home state is the court that has jurisdiction in child custody matters. In general, if a child is born in Texas, then that is considered to be their home state. However, if the child has lived in a different state for six or more months, then Texas may no longer have jurisdiction.
Do I Need an Attorney for Help with Child Custody Issues Between Unmarried Parents?
If you are an unmarried parent in Texas and are experiencing issues related to child custody, it is advised that you consult with an experienced Texas child custody lawyer. LegalMatch can assist you with setting up an initial legal consultation with an experienced attorney in your area. An attorney will then be able to advise you as to what your best course of legal action is when it comes to protecting your parental rights and establishing custody.
Further, an experienced and local child custody attorney will be best suited to helping you adhere to Texas’s specific laws and guidelines regarding child custody. An attorney will also ensure your child’s best interests are being protected while also ensuring that your parental rights are protected. A child custody attorney will also be able to represent you in court, as needed.
