Learning More about Custody Laws in Texas for Unmarried Parents

Learning More about Custody Laws in Texas for Unmarried Parents

When you and your significant other decide to break things off, it will undoubtedly impact the child you share with your future ex. If you have a child but are not married to your ex-partner, you may naturally be concerned about the child custody laws in Texas for unmarried people. Unmarried people still have the same legal obligations to their children, and whether you are married or not, the court can still issue orders regarding your children. Custody cases involving unmarried parents, however, can prove more complex than child custody cases between divorcing parents. 

Following a divorce, both parents generally have equal rights to their children, but when a couple is unmarried and separates, the father can only seek the paternal right to custody by establishing paternity. 

With over 75 years of experience in family law cases, our team of skilled attorneys at Mims Ballew Hollingsworth | Forth Worth Family Law is dedicated to providing our clients with the highest quality of legal representation. Our lawyers possess a deep understanding of the complexities involved in child custody cases for unmarried parents and are prepared to help you make informed decisions regarding your child’s future. 

Establishing Parental Rights and Responsibilities in Texas 

Paternity is assumed in child custody cases where the parents are married to each other. If a child’s parents are unmarried, the mother automatically has both physical and legal custody rights over the child. Even when the father’s name appears on the birth certificate, he has extremely limited rights until paternity has been established. Until an unmarried father receives legal recognition as the child’s father, the child’s mother has the right to make all the decisions for the child, including if and when the child visits the father. The mother also has the right to move out of state without notifying the father.

Establishing Paternity 

An unmarried father can establish paternity either through an Acknowledgment of Paternity (AOP) or a DNA paternity test. Cheek swabs from the mother and alleged father are analyzed in the DNA test by a recognized lab to verify paternity. If the child’s mother refuses to cooperate, the father can obtain a court order for such testing. 

An Acknowledgment of Paternity form (AOP) is a legally binding form that must be signed by both parents. This form should name the child’s presumed father or state that there is no acknowledged father and include the results of any genetic testing. While no paternity test is required when an AOP is signed, it is recommended to ensure the presumed father is actually the father of the child. Once paternity is proven, unmarried fathers do not immediately gain the same custodial rights as their married counterparts. Instead, they will need to request and submit a child custody order from the court. 

In cases where parents are unable to agree on terms or fail to keep to agreed-upon terms, parents may seek court-mediated custody arrangements. If unmarried parents live together or separately but co-parent in a positive way, they have the option of negotiating and reaching a custody arrangement on their own; however, while they may be able to operate under informal agreements, the court must still review whether the arrangement is in the best interest of the child and approve any settlement.

Texas courts recognize that children benefit the most when both parents have a healthy relationship where they are able to support each other’s decisions. When parents cannot agree on an appropriate division of rights and responsibilities, the court will define what is best for the child by determining custody, visitation, and formulating a parenting plan. 

Some examples of parenting rights and duties addressed by family courts in parenting plans include:

• The right to confer with the other parent before making a decision concerning the welfare of the child. 
• The duty to inform the other parent of the child of significant information concerning the welfare of the child in a timely manner. 
• The right to receive information concerning the welfare of the child.
• The duty to care for, control, protect, and reasonably discipline the child 
• The right to consent to psychiatric and psychological treatment.
• The duty to support and provide the child with clothing, food, shelter, medical, and dental care. 
• The right to access medical, dental, psychological, and educational records. 
• The right to direct moral and religious training of the child.
• The duty to make periodic child-support payments.
• The right to receive payments for the support of the child and disburse the funds for their benefit.

Parents who do not have primary custody of their child, also known as the non-custodial parent, are not without rights, and whether they have the children live with them or not, the custodial parent must respect the non-custodial parent’s rights under the possibility of penalty from the court. A custodial parent with a history of routinely disregarding the non-custodial parent’s rights may result in the court modifying the custody agreement or completely taking primary custody away from one parent. 

Determining Child Custody and Visitation Arrangements for Unmarried Parents 

Regardless of marital status or whether a couple was married at all, every parent possesses certain rights that are upheld and can be expanded or contracted by court orders. Court orders concerning custody arrangements are broken up into a few main issues, including conservatorship, rights and duties, possession and access, and child support.

In place of custody, Texas uses the term conservatorship. A child’s custodial parent is thus referred to as the child’s conservator. The court will designate either one or both parents as conservators of the child. 

When it comes to making decisions for the child, the court recognizes that it is ideally better for two parents to work together. The presumption that the child would benefit from the input of both parents often leads the courts to appoint both parents as joint conservators in most cases.

There are different ways a conservatorship can be done, including:

Sole Managing Conservatorship (SMC)

In a sole managing conservatorship, the parent makes the decisions about where the child will live, their health, education, and other major aspects of their life. In these arrangements, the sole managing conservator usually receives child support from the non-custodial parent. 

In cases where custody is awarded on a sole basis, possessory conservatorship generally applies, and the non-custodial parent is referred to as the “possessory conservator.” If you wish to be the sole managing conservator, you will need to prove that this arrangement is in your child’s best interests, and you should also be prepared to potentially prove that the other parent should not be allowed to make decisions for the child. 

Joint Managing Conservatorship (JMC)

Both parents share the same rights and responsibilities when custody is granted jointly. While this arrangement allows both parents to participate actively in making decisions regarding their child’s welfare, one parent may be designated as the primary conservator. 

The primary parent in a JMC has the right to make key decisions like where the child mainly lives, what school they will go to, and what kind of invasive medical or psychiatric treatments they can undergo. 

While the parent who has primary physical custody may have authority to make day-to-day decisions regarding the child, both parents maintain equal rights to see medical records and access information such as: 

• The child’s welfare
• How school is going
• If there are any social or educational events or health concerns

A non-custodial parent also has the right to participate in meetings concerning the child and speak with their educators, doctors, or providers. These arrangements encourage parents to work together to raise their children and have numerous benefits for the child’s overall well-being. 

What is a Possession and Access Order?

While the terms possession and access may sound as though they are the same thing, there is actually a distinction between the two. A Standard Possession and Access Order (SPO) details the terms of possession and access to the child, covering everything from the school year to holidays and vacations. 

The “possession” part of an SPO outlines the non-custodial parent’s visitation rights. The “access” refers to the type of contact the non-custodial parent can have with their child. For example, an order can detail the times they may communicate with their child via text or email. Under an expanded standard possession plan, the parent has access to the child during all the same times as under a standard plan and is also allowed extra overnight visitations and permission to pick up their child from school or drop them off. 

While the primary conservator in a joint custody agreement has the right to decide where their child resides, the court may place restrictions on where the custodial parent can live in order to ensure that the non-custodial parent still has access to their child. If parents can reach an agreement between themselves on the dates and times the non-custodial parent will visit the child, the court will likely honor the arrangement or order a different SPO based on the best interest of the child. 

Factors Considered by Texas Courts in Custody Determinations

When unmarried parents cannot agree upon terms for custody through negotiations, the court must make custody decisions based on the best interests of the child. There are many factors the court considers, including the child’s emotional and physical needs, when determining child custody. Understanding these factors can help you navigate a family law case more effectively. 

Some additional key factors Texas courts consider when determining custody include: 

• The best interests of the child: Perhaps the most important factor in child custody determinations, the court always puts the best interest of the child first.
• Stability of the home environment: The stability and security of the homes of both parents can have a major impact on custody decisions. If one parent is frequently away from home or has an unstable living situation, receiving primary custody is unlikely. 
• The wishes of an older child: If the child is more than 12 years old, the court may consider the child’s desire to live with a specific parent. The court will interview a child in chambers as to their preferences. 
• The parent-child relationship: The court will look at the history and nature of the relationship between a parent and their child, including past parental involvement in the child’s life, to make a decision regarding custody that will promote and protect the child’s best interests. 
• Parental fitness: A parent’s ability to provide for their child’s physical and emotional needs will be considered when determining custody. To serve the best interests of the child, the court will need to know the history of abuse and domestic violence by either parent. For example, the court might consider a parent with a history of domestic violence or abuse a danger to the child and be hesitant to award them custody or unsupervised visits. Mental health issues might also call into question the fitness of the parent. 
• Parental cooperation: A parent who shows a willingness to cooperate and co-parent with the other parent will have a stronger case for custody wishes. If one parent is found to be uncooperative or unwilling to work with the other parent, they are less likely to receive custody rights. 

Every child custody case is unique, and Texas family courts want to see the whole picture to determine the custody arrangement that will best serve the interests of the child. All of these factors, along with other relevant points, will be used by judges to make informed decisions about the child’s future. Understanding the factors courts consider when making child custody decisions can help you prepare for your case and obtain a more favorable outcome. 

Modifying Custody Orders for Unmarried Parents in Texas

Life happens, and while you may believe that child custody and visitation orders are set in stone, fortunately, this is not the case in Texas. Many of life’s events, such as job relocation, can serve as a basis for a parent seeking to modify an existing child custody order. 

Additionally, modifications can be sought when there are changes in the child’s needs or preferences. 

A parent may file a petition seeking child custody modification, also referred to as a “Petition to Modify the Parent-Child Relationship,” if they can prove that there was a significant change in circumstances since the date of signing the current order that would merit such an alteration. If the parent filling the motion and the parent who receives the motion can agree on the proposed changes, it may make for smoother sailing and involve only a brief court appearance where the judge can review the paperwork and determine whether to grant the modification request. 

The modification process is lengthier in cases where the parents disagree on the need to modify the order. When the respondent files papers objecting to the modification request, the court considers the case contested and will set a date to hear testimony from both sides. Unless the changes reflect the best interests of the child, the court will not modify the custody order. 

A court will only permit modification if the request is based on one or more of the following: 

• The child has stated a preference regarding which parent they wish to live with primarily and are 12 years or older. 
• The petitioning parent, the respondent, or the child has experienced a” material and substantial” change in circumstances necessitating the modification.
• The conservator who has the exclusive right to designate the primary residence of the child relinquishes primary care and possession of the child to another person for at least six months, and the modification is in the child’s best interests. 
• The proposed changes will serve the child’s best interests. 

Regardless of when the modification request is initiated, relinquishing primary care and possession due to military service does not count toward the requirement for custody modification. Additionally, parents generally must wait one year from the prior order to modify their custody arrangement. 

There are several situations that would qualify a change in circumstances as being “material and substantial.” For example, a medical condition that has affected one parent’s ability to care for a child would qualify as a “material and substantial” change in circumstances. 

Some additional situations include:

• Unemployment 
• Change in marital status
• Job relocations 
• Abuse or neglect by either parent 
• Substance abuse 

If you have questions about an existing child custody agreement, contact an experienced family law attorney to learn more about your legal options. A knowledgeable family lawyer can explain the pros and cons of seeking a modification and recommend the best approach for your individual circumstances. 

Put Our Fort Worth Child Custody Attorneys on Your Side 

A challenging aspect of Texas divorces is child custody disputes. If you are an unmarried parent, an experienced child custody attorney can help you protect your parental rights. Our skilled litigators at Mims Ballew Hollingsworth | Fort Worth Family Law are prepared to work with you to protect your parental rights and create a parenting plan that will cover all of your child’s needs. 

Contact us for a consultation with a Mims Ballew Hollingsworth family lawyer today. 

Constance Mims

Constance Mims has over fifteen years of experience practicing exclusively family law. Mrs. Mims is Board Certified in Family Law, by the Texas Board of Legal Specialization. She is Collaborative Law certified and is a shrewd negotiator, not to mention her experience in the most challenging child custody, child support, spousal maintenance, alimony, prenuptial agreements, and divorce issues, both in court and in the appellate arena.