unmarried couple with child splitting up

Whether a couple is married or unmarried, breaking up and dissolving a family unit is extremely difficult.

The process of splitting up and moving into a different home is even more difficult when there are minor children from the relationship.

In cases where both parents are legal parents of the child, that unmarried couple with a child splitting up will experience much the same child custody process as any married couple going through a divorce with young kids.

However, in situations where only one of the parents is the legal parent, the process of determining child custody—known under Texas law as “conservatorship” and “possession”—becomes much more complicated.

If you are breaking up with your partner and the two of you share a child or children, it is extremely important to begin working with a Texas family law attorney as soon as possible on conservatorship issues and, if necessary, establishing paternity. In the meantime, we want to provide you with more information about how child custody works when an unmarried couple splits up.

Determining Child Custody with Two Legal
Parents of the Child

Parents do not have to be married when they have a child in order for both to be legal parents of the child.

In the most straightforward cases, the parents are unmarried but are in a relationship at the time of the child’s birth. The biological father is present for the birth, and both the biological mother and father are listed on the child’s birth certificate. In such cases, both parents usually are the legal parents of the child. There are other scenarios in which both parents may be legal parents of the child without the biological father being present at the birth or in a relationship with the mother at the time of the birth, and a Texas family lawyer can say more.

In situations where both parents are the legal parents of the child, the process of determining child custody, or conservatorship, is like the process for married parents who are getting divorced. Texas law emphasizes that it is public policy to “assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interests of the child.”

Accordingly, to determine conservatorship and possession of the child—meaning the ability to make important decisions about the child’s upbringing and to spend time with the child, respectively—the court looks at a number of factors to decide what is in the best interests of the child.

Parents can share conservatorship, or it can be assigned primarily to one parent. In other words, both parents can be appointed as joint managing conservators (in which both are responsible for making important decisions about the child), or one parent can be appointed as the sole managing conservator. When one parent is assigned as a sole managing conservator, the other parent still can be appointed as a possessory conservator.

In other words, both parents can spend time with the child and raise the child physically, even if only one parent is responsible for making the important decisions concerning the child’s welfare.

Yet the court will not even consider conservatorship or possession for the father when the parents are unmarried and the father is not the legal parent of the child. In order to be appointed as a conservator or possessory conservator, the father first needs to establish rights as a legal parent.

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Establishing Paternity When the Father is Not Yet the Legal Parent of the Child

When unmarried parents split up and have a child but both parents are not the legal parents, the first step in moving toward child custody is establishing paternity.

As the Texas Attorney General explains, paternity is defined as legal fatherhood. Accordingly, when parents are unmarried and have a child, “the biological father does not have legal rights to his child until paternity is established.” There are essentially two different ways to establish paternity:

  1. Court-ordered paternity test; or
  2. Acknowledgement of paternity (AOP).

In some cases where the alleged or putative parents disagree about paternity, or in scenarios where one of the parties wants to ensure that the father is actually the biological father, the court can require the alleged father to take a paternity test. This typically happens when the Office of the Attorney General files a petition to establish paternity. Then, the court orders the alleged father to take the paternity test.

Paternity tests are relatively noninvasive, and they are extremely accurate. With about 99 percent accuracy, simply having the alleged father’s cheek swabbed, and having the child’s cheek swabbed, the test can establish paternity. A paternity test can be administered in court, at a clinic, or at a child support office. It takes about four to six weeks to receive the result.

The paternity test is all that is needed to establish legal parentage, and to give the father rights and responsibilities with regard to the child. However, it may not be necessary to take a paternity test. The Acknowledgement of Paternity (AOP) can also establish paternity. How is the AOP different from a paternity test? When the child is born or afterward, biological parents can establish that they are legal parents of the child with certain rights and responsibilities through an AOP. The biological father typically needs to complete and file an AOP. A Texas family law attorney can discuss this process with you, and can explain how you fill out and file an AOP so that you can move into child custody matters.

Once paternity has been established, it is important to correct the child’s birth certificate to include the name of the legal father. This requires completing Texas Vital Statistics Form VS-170.

Seek Advice from a Family Law Attorney in Texas

Child custody cases can be complicated and extremely contentious. These matters often become even more difficult when the parents are unmarried and both are not currently the legal parents of the child. If you need assistance establishing paternity, or if you need an advocate for your child custody case, an experienced and compassionate Texas family law attorney at our firm can help. Contact the Law Office of Ben Carrasco PLLC today.

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