In the world of Texas family law cases that involve children, there are very few differences between child custody and divorce cases. While divorce cases can involve the financial lives of the two parents if you and your child or their parents are unmarried then there will be no financial component to your case. Yours will strictly be a case dealing with child custody, conservatorships, and all of the other elements that are involved in a child custody case.
One of the questions that I receive with some regularity is whether or not there are differences between the child custody case that you might be entering into as an unmarried parent and that of a child custody case as part of a divorce. Specifically, parents of children that are unmarried often wonder whether or not their rights to their kids differ from those rights of married parents and their children. Does the law hold it against you but you did not get married before having children? Is there any benefit to your getting married before having children? In today’s blog post from the Law Office of Bryan Fagan, I’m going to share with you my thoughts on this subject so that you will have less to concern yourself with as you consider the possibility of filing a child custody case in Texas.
Do the unmarried parents of children have different rights and duties than married parents?
The simple truth is the biggest difference between unmarried parents of children and married parents of children can be seen in the initial stages of the child’s life. For instance, there is a presumption that the husband of a woman who gives birth to a child is the father to that child. So long as the child is born during the marriage or is born within nine months of a divorce a legal presumption exists that the father is the woman’s husband. If the husband is not the biological father of the child then he would need to legally contest paternity.
There is no legal presumption as it pertains to paternity if, for example, you are not married to a woman who is due to give birth to your child. In that case, an acknowledgment of paternity would need to be signed by you and the child’s mother to establish paternity. This form is typically given out at the hospital and can be signed and sent to the State of Texas for processing. At that point, you would be the legal father to the child. Paternity can be disputed by yourself or another man in the future, but the same can be said for a married father to a child.
Once you have legally established the paternity of your child there are no differences between the rights and duties that you hold about your child compared to those rights held by a married mother or father. This begs the question: how do your rights and duties differ, as an unmarried father, compared to your child’s mother? Many men come into our law office and have questions about whether or not it is even possible to have equal rights to their child compared to Mom. Does the law favor women over men when it comes to parenting rights and duties?
Parenting your child as an unmarried father: Do mothers hold the upper hand?
I am willing to bet, if you are an unmarried father, that you have heard at some point since becoming a dad that your child’s mother gets to call the shots when it comes to parenting decisions. You may be able to see your child when she lets you but that she is in control of the major decision-making events of your child’s life. Does that sound familiar?
Many fathers who enter into a family law case assume that this is true. These men will come into their case with goals that are based on this assumption, as well. Many fathers in your position act as if they are resigned to their fate of not being able to get a square deal from the family court. They believe that they will be lucky to get any time with their children at all. Their child’s mother may have even told them that they’ll be lucky to not have their parental rights terminated. This can be a very intimidating prospect for many men who may be in similar shoes to yours.
The truth is that as an unmarried father your parental rights about your child are the same as your child’s mother. Our society in the culture, in general, may lead you to believe that this is not the case but I can assure you that it is. The Texas family code does not draw a distinction between unmarried fathers in married fathers or between unmarried fathers and unmarried mothers. So long as you have legal rights about your child then you are on equal footing with your child’s other parent. Hopefully, this gives you some confidence to be able to go into the potential child custody circumstance.
The last thing you want to do is risk losing your relationship with your child over a misunderstanding of the law. Another thing you want to avoid is not ever being able to have our relationship with your child because you assumed incorrectly about what your rights as an unmarried father are. What we see in the world of family law is that you will have every opportunity in the world to build a relationship with your child so long as you take advantage of the time you are provided. Let’s talk about how many unmarried fathers put themselves in less than desirable situations when it comes to performing well in a child custody case.
What can you do as an unmarried father to position yourself well in a family law case?
If you are on the cusp of child custody or child support case in Texas then much of the advice in this section will not do you very much good for right now. However, I would recommend reading this blog post in its entirety T because the advice is still relevant for you as a father who is interested in becoming a greater part of your child’s life. The simple truth is that within the context of a child custody case a judge will make decisions on conservatorships in custody based on two things: What you ask for in what you have done to this point in time.
The judge in a family law case can only award you relief within the context of a case based on what you ask for. For example, if you ask to be named as the primary conservator of your child then you will have an opportunity to be named as such. It is another matter altogether whether or not you have a chance to be named as the primary Conservatory child but if you ask the judge for it then he or she can consider granting you that right. By the same token, but you do not ask for cannot be awarded to you.
The key to getting what you want in the context of a child custody case is to have played an active and involved role in the life of your child to this point in his or her life. This is where you get into the nitty-gritty of trying to determine what a reasonable goal is for your case when it comes to any issues related to custody. On the one hand, you may want to be able to spend as much time with your child as possible. On the other hand, a judge will strongly consider your case when you have displayed a history and willingness to play a substantial role in your child’s life. What exactly do I mean by this?
When it comes to your desire to be named as the primary Conservatory child and that of your parent, the judge will look and see what role you each have played in the lives of your child to this point. It is unlikely that a family court judge will make significant changes in your child’s life simply because you asked him or her to. So, if you had not been the primary parent as far as caring for your child regularly then it is unlikely that the family court judge will allow you to take on that responsibility as a result of the child custody case. This doesn’t mean that you have no opportunity to have a meaningful relationship with your child but it does mean that a judge will hesitate before naming you as primary conservator.
Does that mean that the courts are biased against unmarried fathers? No, not necessarily. Remember, the Texas family code does not draw distinctions between mothers and fathers. This means that men and women, absent prior determinations by the court, have equal rights and duties about their children no matter what their marital status is. A judge will not, absent other considerations, simply look at you or your Co-parent and make decisions on custody based on your gender. While this is a positive for you as a Co-parent father what may not be as positive as you were history in relationship with your children.
Because women tend to take on the role of primary caretaker more readily than men it stands to reason that you may be in a position that you are not set up well to succeed in a child custody case if your goal is to become a primary conservator. If your child’s mother has more oftentimes been his or her primary conservator then you have an uphill climb as far as gaining superior conservatorship rights about your child. It doesn’t matter if you were gone from the home more than your child’s mother due to your working or going to school or for any other reason. The simple truth is that a judge values consistency instability for your child.
As a result of that desire, I don’t think it is likely that the judge will rock the boat with your family and change up what has been working to that point. This all changes, however, if there are problems at home or if your child has needs that are not being met by his or her mother. In that case, we may be having a different conversation but to get to the bottom of a situation like that you would need to speak to one of our experienced family law attorneys. In that case, there may be more strength to your case than meets the eye.
What can you do to strengthen your child custody case if you are an unmarried father?
Let’s assume now that you are not staring down a child custody case that is fast approaching. Rather, you are merely anticipating a future need for one at some point that is a bit far off. Now that you have some time to learn more about the process and understand what is expected of you and what your rights are under the law you may be asking yourself what you can do to prepare for this type of case. For starters, I would consider what is in the best interests of your child and go from there.
The best interest of the child standard is the legal standard that almost every state in the country utilizes to make determinations regarding the well-being of children. Texas is no exception to this rule. If asked to do so, a Texas family court judge would make determinations on any subject related to your child based on what he or she believes is in the best interests of her child. What is fair to you or fair to your child’s mother is not relevant to that discussion. A judge isn’t trying to make you or your child’s mother happy. The judge will be trying to do what is best for your child.
What is in your child’s best interest is for you to build a relationship with him or her. Many of you reading this blog post already have outstanding relationships with your children. This is to be commended especially if you find yourself in a position where you’ve had to work at it or if your child’s mother has not always made it easy for you to have that kind of relationship. On the other hand, if you are an unmarried father to a child with whom you do not have a great relationship then you should know it is never too late for you to start making an effort to build that type of relationship that can benefit both of you.
It is presumed in a child custody case that your child will benefit from having an ongoing and sustained relationship with both you and your child’s mother. Do not assume that the court only once your child has a relationship with his or her mother. That is the mistake that many fathers fall into and that causes many men to suffer consequences within the context of their case. Rather, regardless of the results of any child custody case, you should make an effort to build a relationship with your child just because it is what is in his or her best interests as well as your own.
Building this relationship will lay the groundwork for any future child custody case that you engage in. As we have already talked about, a family court judge looks to the past to make decisions for the future. If the judge sees that you have played an integral role in the life of your child, lived in the same house as the child, and are competent to be a full-time primary parent then your goal of becoming a primary Conservatory child may not be that far fetched. This is why I would always recommend the fathers play a role in their child’s life no matter what the obstacles are. Making the effort to do so is always worth it.
Finally, I think it is a good idea for unmarried fathers 2 consider what their goals are and how those goals align with being a part of your child’s life. So often, it seems, fathers tend to allow mothers to take the lead when it comes to raising the child and doing what is in that child’s best interests daily. I think this is a major mistake, especially for unmarried fathers. Do not become so focused on yourself and on your own goals that you lose sight of your child. Even if you are only able to see your child once or twice a week then you should take advantage of that time. Most especially, if you want to see her child more than you currently do the best place to go is to a free-of-charge consultation with one of the attorneys with the Law Office of Bryan Fagan.
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.