In the past, when making child custody determinations, courts frequently awarded custody of a child to mothers by default due to the mistaken belief that moms were better equipped than fathers to raise children. Today, however, a Texas father's rights are protected by the Texas Family Code.
Courts in child custody cases are required to do what is in the best interest of the child, and research shows that means having a healthy parent-child relationship with both parents. Courts have also come to recognize that both parents want a relationship with their child and, if given the chance, will put forth their best effort.
While the myth that “weekend dads” are accessories (and that non-custodial parents are somehow dispensable) does persist in some places today, fathers are now recognized by courts as having equal parental rights. Nonetheless, fathers in a child custody case still have many questions about their legal rights as a father, so we wanted to address some of the most frequently asked questions here.
What are a father’s rights in a child custody case?
Before a child’s father can exercise his legal rights and duties in the parent-child relationship, he must first establish paternity, or that he is the biological father of the child.
This is easier if the parents are married when the child is born. This is because the Texas Family Code automatically acknowledges a husband and wife as the two legal parents of a baby born during the marriage. When a baby is born to parents who are not married to each other, they must take additional steps to establish a man as the father before he has any legal rights. Those steps are discussed below.
Once a man is established as the father of the child, he has the same parental rights and duties as the child’s mother unless and until a court order says otherwise. Even if you're not married to your child's mother, you have inherent legal rights and responsibilities under the Texas Family Code. However, if you’re having conflict with the child’s mother and want to change or limit the other parent’s rights, you must go through the court system to do so.
How does a father establish paternity?
If a child is born outside marriage, there are several ways to establish paternity. If the mother and father are in agreement about the child’s parentage, both parents should complete and sign an “Acknowledgement of Paternity” form. This is necessary even if the father is listed on and signs the birth certificate because a birth certificate is not a legally binding determination of parentage.
Another option is an Agreed Paternity Order. This is an agreed court order in which the parents establish the paternity of the child, but also agree on other issues like custody and visitation, child support, and the sharing of medical costs.
If there is a disagreement as to a child’s paternity, a court order will be needed to determine paternity. This process operates much like a lawsuit, with both the mother and the alleged father allowed to present evidence to a judge. Oftentimes, this will include a DNA test. Based on that evidence, the court will determine paternity and issue an order regarding conservatorship, visitation, and child support. Any father or presumed father in this situation will need a skilled Child Custody Lawyer to establish and protect his parental rights.
What type of custody is best for a child?
The Texas Family Code uses the term “conservatorship” to refer to a parent’s legal rights regarding their child. Conservatorship encompasses many different rights and obligations, from the duty to provide a child with adequate food and shelter to the right to make educational or medical decisions on the child’s behalf.
Unless it would be harmful to the child's physical or emotional health, the Texas Family Code presumes that both parents should be named joint managing conservators. Most courts want to have both parents involved in the child’s life, including sharing parenting time and making decisions about education, medical care, religious training (if applicable), discipline methods, and other important issues affecting their development into healthy adults.
Important Note: In Texas, a child’s wishes as to custody cannot be the sole determining factor regarding which parent they wish to live with. However, once the child turns 12, the court may take the child’s wishes into account.
Can a father lose visitation rights?
Although the Texas Family Code presumes both parents should have access to and possession of the child in order to foster a healthy parent-child relationship, any parent can lose their visitation rights if there is concern about that parent’s behavior. A court can always step in and make changes to any child custody determination if it finds those changes are in the best interest of the child.
For example, a judge may mandate that a child’s visitation time with a non-custodial parent be supervised if they believe that the child's safety is at risk. In extreme cases, a judge may also rule that a non-custodial parent has no visits. This option is used when even supervised visits prove physically or emotionally harmful to the child. This step is usually only taken in the event of violence in the household, an unstable living environment detrimental to the child’s welfare, if a parent is jailed, or if a parent tests positive for drugs or other unlawful substances.
If you are a non-custodial parent and find yourself potentially facing the loss of visitation rights, It’s important to speak with a family lawyer. Likewise, if you are concerned about your child’s safety with the other parent, you’ll need skilled representation in order to convince a court to modify that parent’s rights toward the child.
Can a father lose parental rights?
Terminating a father’s parental rights is difficult and requires a very high legal standard. Under the Texas Family Code, some of the grounds for terminating and/or modifying a parent’s rights in Texas include the following:
Child Abuse
False Allegations of Child Abuse
Child Abduction
Child Neglect
Domestic Violence
Violating a Child Custody Order
Parental Alienation
Refusal to Co-Parent
Chronic Mental Health Issues or Substance Abuse Disorder
Threat of harm to self or others
If you find yourself the subject of any of these allegations, it is imperative you seek the advice of a family lawyer. Your rights in your parent-child relationship could be at stake.
Can a father forfeit parental rights?
The Texas Family Code does provide a few ways for a parent to relinquish their rights voluntarily. One option is signing a document called an affidavit of “voluntary relinquishment” of parental rights. This document must be filed with the court, and the parent still must prove that “voluntary relinquishment” is in the best interest of the child. If another person is willing to take over legal responsibility for the child, the court is more likely to consider terminating that parent's rights.
For example, a parent who has no relationship with their child may willingly give up parental rights to allow a step-parent to legally adopt the child and take on legal custody and parental responsibilities in their place. In addition, a parent’s chronic illness, incarceration, or inability to participate in a child’s life for extended periods are other potential grounds for voluntary termination of parental rights.
Once ordered, a voluntary relinquishment is final. The parent who signed over their rights will no longer be regarded as the child's parent, and their name will be struck from the child’s birth record. If you are considering this step, it’s imperative you speak with an experienced attorney and fully understand what you are forfeiting.
In Closing
Texas fathers have rights. If you need to establish paternity or are facing threats to your rights as a father, you need an experienced family law attorney on your side. Contact us to schedule a consultation so we can further discuss the details of your specific case and how the Law Office of Robert Tsai, PLLC can start advocating for you as a father.
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