When you become a parent—whether biologically, or through adoption—there’s a certain set of rights and responsibilities that come prepackaged with the role. But what happens if your role as a parent isn’t automatically assumed?
This is a problem that often plagues unwed parents, where paternity presumptions are either wrong, or don’t exist, altogether.
The good news is, whether you are a mother seeking financial support from the child’s father, or a father wishing to claim rights of custody and visitation, Texas courts are just as eager as you are to make sure parental rights are assigned to the right people.
Presumption of Parenthood
In Texas, courts presume that a child born into a marriage belongs to the respective spouses in that marriage. When this happens, both mother and father automatically assume the powers and duties associated with parenthood without a formal process. This includes (among other things), the right to be around your child, to make decisions on their behalf, and to raise them the way you see fit.
This is all well and good for married couples, however, there are two common scenarios where this presumption falls short:
- When neither the mother or the father is married; and,
- When the mother is married, but the child’s father is not her spouse.
Here’s a closer look at these two scenarios, and the two most common issues they raise in lieu of an effective parenthood presumption: child support, and custody.
Child Support
One of the most common problems that arise in both of these scenarios is logistical. Simply put: who will provide for the child’s physical needs? Because kids don’t come cheap, and when it comes to the question of who should fit the bill, Texas courts are dedicated to ensuring the proper parents—whether wed or unwed—are held legally accountable for this responsibility.
Unwed Father Doesn’t Want to Pay Child Support
The issue of child support comes up a lot when neither spouse is married, and the pregnancy is accidental. In these scenarios, it might be tempting for a father to assume he’s off the hook for the child’s care. After all, he isn’t married, so why should the child be his responsibility?
Just so we’re completely clear, here: this assumption is wrong.
Texas courts do not care if the pregnancy was accidental or on purpose, and your marital status is irrelevant. They are only interested in serving a child’s best interest, and neither of these things changes the fact that a child was, in fact, fathered. Hence, unwed dads are still responsible for fulfilling their respective obligations.
If the father refuses to be recognized as the child’s legal parent, it may be necessary for the mother to file a paternity suit.
Assumed Legal Father Doesn’t Want the Obligation
The issue with child support isn’t only one that plagues unmarried couples, but married ones as well.
For example, let’s say a child was born to a married mother, but fathered by a man outside the marriage. Under Texas’s presumption of parenthood, the mom’s spouse would (erroneously) be regarded as the child’s legal father. But what happens if her spouse finds out he isn’t the child’s legal father, and no longer wants the obligation of caring for his spouse’s love child?
In these instances, the presumed legal father would need to file a petition to terminate the parent child relationship. This request must be backed by genetic testing that definitively proves the child is not, in fact, his own. If the court chooses to grant the petition, the presumed father would still be required to support the child until the termination date.
Custody and Visitation
The second biggest issue that comes up in terms of paternity, revolves around parental rights to have access to and make decisions on behalf of, a child. We’re talking about custody and visitation, here, and in terms of paternity, it comes up a lot, since only parents are granted this right by courts.
Mother Refuses to Acknowledge Father
For various reasons, it sometimes happens that a mother refuses to acknowledge the child’s father. Maybe she doesn’t know who the father is. Maybe the father is already married. Maybe she is married.
Whatever the case, Texas courts are dedicated to ensuring a child’s best interest, and this includes making sure they can have a loving, healthy relationship with both parents. Hence, if your child’s mother refuses to recognize you as the biological father, you don’t need to worry. Your family law attorney can help you file a suit to establish paternity, so that you can be a part of your child’s life.
Mistaken Parentage: Mother Married to Someone Else
Filing a suit for paternity is a lot simpler when neither spouse is married. If either parent is married to someone else, however, things can get a little more complicated.
Remember, when a child is born into a marriage, its parentage is automatically assumed to be the partners in that union. But in cases of infidelity—when the biological father is not, in fact, part of that union—biological fathers will need to petition the court to overturn this mistaken parentage, before they can even start thinking about suing for custody.
The easiest way to do this, is for both parents to sign an Acknowledgement of Paternity (or, “AOP”), which essentially states who the child’s legal parents are. In situations where the mother is married to someone else, however, the child’s presumed legal father (your lover’s spouse), will also be required to give up parental rights by signing a Denial of Paternity (or, “DOP”).
If this option doesn’t pan out, it may be necessary for biological fathers to file a lawsuit to establish paternity.
Paternity Tests
In Texas, both fathers and mothers can request a paternity test.
If a petition is granted, father and child will be required to undergo a DNA test, to see if they are a match. This is accomplished through a non-invasive cheek swab, and can be done in court, at a clinic, or at your local child support center (wherever the judge determines). If the baby hasn’t been born yet, courts will usually require you to wait until after birth to conduct a DNA test.
Paternity tests are often the first step of a custody suit, however they can also be used to dispute false claims of paternity, if the child’s biological father is in question.
Paternity Attorneys in Texas
Both the rights and responsibilities associated with parenting can be stressful to navigate—especially when paternity presumptions don’t apply to your situation. Luckily, you don’t have to do it alone.
Whether you are a mother who needs financial help from the child’s father, or a father who wants to be recognized as a child’s legal parent, the team at Neal Ashmore can help. Call us today at (972) 436-8000, or schedule a consultation online, and let us help ensure your child’s needs and interests are being fully met.
