When a marriage ends, the entire family experiences upheaval. Parents and children face significant challenges adjusting to a new life. While both parents have a right to maintain a relationship with their children, many people inquire specifically about a father’s rights in a Texas divorce. Sometimes this is based on the incorrect belief that the law favors mothers over fathers in Texas custody cases.
The good news is that if you are the legal father of a child, you have the same rights and obligations as a mother or any other legal parent. These rights include the ability to seek custody or visitation as a part of your divorce case. Below, the attorneys at The Larson Law Office describe legal fatherhood and a father’s rights in divorce cases.
Before discussing a father’s rights in a Texas divorce, you should understand legal fatherhood and what that means. In Texas, fathers do not have the same automatic rights to a child as a biological mother would. Instead, a father must establish themselves as the legal parent before they can pursue other rights. Legal fatherhood is easy to establish if the child is born during the marriage. However, not all father-child relationships fall into that set of circumstances.
Presumption of Legal Fatherhood
Under the law, a man is presumed to be the legal father of a child if that child is born during the father’s marriage to the child’s mother. This means the father has automatic legal rights to the child under these circumstances. Additionally, if the child is born within 301 days of the end of the marriage, the father is presumed to be the child’s legal father.
Texas law also presumes that a man is the legal father of a child if he:
- Resides with the child for the child’s first two years of life, and
- Holds himself out to the world as the child’s father.
Holding oneself out as a father means that the man tells people he is the child’s father and treats the child as his biological child. If a man fulfills these criteria, he is presumed to be the child’s legal father.
Other Pathways to Legal Fatherhood
Not all father-child relationships fall within one of the categories above, even in a divorce case. Thus, Texas law has other methods to establish legal fatherhood.
Acknowledgment of Paternity
A father and mother can sign an Acknowledgment of Paternity (AOP) form confirming that the man is the child’s father. Hospitals often provide this form to parents around the time of birth if the parents are unmarried. The parents can also sign the form after the child is born by working with an AOP-certified agency.
Another way to establish legal fatherhood is by going through the courts. You can either do this as a part of your divorce case or as a separate paternity case. This may also arise if you ask for custody and visitation as a part of your divorce and the mother contests your paternity. A court will generally examine the evidence to determine whether you fit into one of the above-listed categories. The court may also send you for a paternity test.
A Father’s Rights in a Divorce
Once you’ve established legal fatherhood under Texas law, you have all the legal rights of any parent during a divorce. This includes the right to:
- Seek physical and legal custody of your child,
- Have regular contact with your child,
- Make significant decisions regarding your child’s life, and
- Participate in your child’s life.
A father also has the right to request temporary custody or visitation while the divorce case is pending.
The Child’s Best Interests
A court decides all child-related issues in a divorce based on the child’s best interests. The court will examine the following to determine the child’s best interests:
- The age of the child;
- The child’s emotional and developmental needs;
- Each parent’s abilities as caregivers;
- Each parent’s schedule;
- A detriment to the child if separated from a parent;
- The routine of the child;
- Their relationship with siblings;
- Any risk involved in spending time with one or both parents; and
- Whether either parent has a history of violence, abuse, or substance abuse.
Depending on the child’s age, a court may also ask the child about their preferences.
The above list is not exhaustive, and a court can look at any other factor it believes is relevant to the child’s well-being. A court will also examine any agreement between the parents based on the child’s best interests.
Joint Custody Presumption
Generally, Texas law presumes that joint custody is in the child’s best interests so long as neither parent has a history of abuse or other problematic issues. Joint custody—or joint conservatorship as it is called under Texas law—means that both parents share legal and physical rights toward the child.
Joint legal conservatorship, or managing conservatorship, means that both parents share in the ability to make decisions about the child’s life, including their education, religion, and medical care. For this to be successful, both parents must cooperate and learn to communicate for the welfare of their shared children.
Joint physical conservatorship means that the parents share physical custody of the child. This doesn’t necessarily mean an exact 50/50 arrangement. The arrangement must be suitable for all parties’ schedules, especially the children’s. Parents can use the default parenting time schedule as outlined in the law, or they can craft an arrangement that works better for their needs. The Texas Family Code also provides that the default Standard Possession Orders are presumptively in the best interest of the children.
The Larson Law Office Can Advocate for a Father’s Rights During a Divorce
Understanding how the Texas laws of divorce and a father’s rights interact can be confusing. Fortunately, the experienced family law attorneys at The Larson Law Office can help you fight for what’s best for your family. Our attorneys know the ins and outs of Texas divorce, custody, and visitation law. We can explain your rights. We are also active and zealous advocates who take the time to learn about our client’s lives so that their goals and needs are central to our efforts. Contact us today.