What Types of Child Custody Does Texas Recognize?

Texas law recognizes three types of child custody. For a father to be involved in any of them, they must establish that they’re the biological father, known as paternity.

  • Joint custody (also called joint conservatorship). This is the most common form of child custody, as the family courts prefer to involve both parents in the child’s life as much as possible. In fact, Texas law says if the judge does not award joint custody, the judge must state in the order why it was not in the child’s best interests. Joint custody often is structured so that both parents have access to the child as equally as possible. If one parent has physical custody (meaning the child lives with that parent all or most of the time), the other parent will have visitation to offset not having physical custody.  There is a standard schedule for periods of possession of the child, but that schedule can be customized. Significantly, both parents are involved in making all critical decisions related to the child’s upbringing, including medical care, education, religious affiliation (if applicable), and other significant decisions. This may require an agreement between the parents concerning these decisions or the order may only require the parent making the decision to inform the other parent.
  • Sole custody (also called full custody). This means that one parent has full responsibility for the child who lives with that parent. The parent has full charge of all issues and decisions related to the child’s upbringing. The other parent may be allowed visitation but has no authority in decision-making. This applies when one parent is deemed unfit by the courts to have that right.
  • Third-party custody. This may be awarded in cases where both parents are deemed unfit by the court or if the parents agree that is in the child’s best interests. It often involves another family member, such as a grandparent, being awarded child custody.   

What Does Texas Require to Establish Paternity of a Child?

Paternity is how the law recognizes a father as a child’s legal father. Establishing paternity of a child is a critical factor in various legal proceedings, anything from child support payments to physical child custody and visitation. The father may need to have paternity legally established if the mother is denying the father his rights as a father. Child support cannot be ordered unless a judge has made a determination as to the identity of the legal father. There are many ways to accomplish this in Texas.

  • Marriage. If the father is married to the mother at the time of birth, Texas law assumes the paternity belongs to the married man, even if the parties were separated when the child was conceived.  This is called the “presumed father.”
  • Voluntary acknowledgment of paternity (AOP). An AOP is a legal document that a man and woman sign, acknowledging that the man is recognized as the father by both adults. This is usually done when the couple isn’t married at the time of the child’s birth, but both agree that the man is the father. This can’t be done if the mother is married to someone else at the time of the birth (or the birth occurs within 300 days of the divorce) or if another man is the acknowledged father. The AOP may be done at the hospital when the child is born, or later by filing with the State Paternity Registry.
  • Adoption. A man can be designated as the legal father of a child through adoption. If the man is not the biological parent, it may require the biological father to sign documents giving up their parental rights or the court may involuntarily terminate the biological father’s right for good cause.
  • Court order. If the couple wasn’t married at the time of birth and the man hasn’t voluntarily accepted paternity, the court may become involved. The court can’t order child support or custody without establishing paternity. The child’s mother, a man claiming to be the father, the child itself (or its legal representative), or a government agency can request testing to establish paternity. This may require DNA testing. If at any time the Court has entered an order specifically finding that a certain person is the father, then that person becomes the “Legal Father,” regardless of whether the court order resulted from an adoption, a suit to establish paternity, or as part of a final decree of divorce.

What Is the Process for Pursuing Court-Ordered Paternity Testing in Texas?

Suppose paternity needs to be established, whether for a mother to pursue child support or a father to pursue custody or visitation, and the couple doesn’t agree on what needs to be done. In that case, the court may step in with court-ordered paternity testing. There are several steps involved. It’s highly advisable to work with an experienced family law attorney who understands the process and can help guide you through it. Errors can lead to the process taking longer or even to undesirable outcomes. 

  • Filing with the court. The filing can be done by the mother, by the person who’s allegedly the father, or by the government.
  • DNA testing. Court-ordered paternity usually involves DNA testing. This is pretty simple and mainly involves having the potential father and the child have their cheeks swabbed, with the matter collected and analyzed for DNA matches. It generally takes about 4-6 weeks for test results to be available. Note that if an individual pays a private lab to conduct the DNA test without a court order, care must be taken to obtain the type of report that the court will accept as evidence or the test will have to be redone.
  • Legal establishment or denial of paternity. Depending on the DNA results, the person named as the father will either be legally established as the father or they’ll be denied as the father. 

What Is Paternity Fraud?

Paternity fraud occurs when someone is fraudulently named as the father of a child, but they’re not the biological parent. It can also happen that the biological parent is denied being listed as the parent. This may happen for many reasons; one primary factor can be financial, particularly when there is a large inheritance at stake.

Before DNA testing was developed, this could quickly become a complex, fraught legal situation. However, today’s DNA tests are nearly 100% accurate. If you’re facing a situation involving potential paternity fraud, reach out to an experienced attorney immediately.

What Should I Do if I Need Help Establishing Paternity for Child Support When the Father of the Child and I Were Never Married?

Call the Laura D. Heard Law Firm as soon as possible at 210-775-0353 to request an initial consultation. We understand how vital it is for you to establish paternity in order to pursue child support or to establish custody rights–not just for you but for the welfare of the child. Our experienced, knowledgeable family law attorneys can review the specifics of your case and determine the approach to pursue the best possible outcomes.