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Who Has Custody of a Child if There is No Texas Court Order?

mother with boy sitting on couch at home

If you have reached the end of a divorce in Texas, the court’s final judgment will include a ruling on child custody. However, if you are unmarried parents, or if you are still in the process of a divorce, you may not know who has custody rights and responsibilities under Texas law. Families come in all shapes and sizes these days, and Texas law does address the different types of family circumstances. A knowledgeable Houston child custody lawyer can help you identify and protect your rights as a parent and help ensure that the best interests of your children are served.

Paternity and the presumption of fatherhood

Like other states, Texas law presumes that the husband to the mother of a child at the time of birth is the father. The presumptive father will have all legal rights unless paternity is challenged by some means. If the parents are unmarried, however, Texas law requires that paternity be affirmatively established. Until paternity is established, the child will not have a legal father. There is one exception: If the father lived continuously with the child and the mother for the first two years of the child’s life and represented to others that he was the father, then he will be considered a legal parent. Otherwise, the mother retains all legal rights and responsibilities for the child up and until paternity is established.

Paternity can be established in one of two ways: (1) both parents voluntarily sign an acknowledgment of paternity (AOP) near the time of birth; or (2) one party files a “petition to adjudicate parentage,” which is a legal action seeking a court order establishing the parent-child relationship and ensuring the father’s legal rights. Either the mother or alleged father can dispute the parentage. Assuming paternity is contested, without a court order, the unmarried and unestablished father does not have custody rights or responsibilities.

Both parents have custody rights absent a court order

Assuming paternity is established, then the parties have custody rights and responsibilities until otherwise either agreed-upon by the parties or upon order of the court. If the parents are not together, they can negotiate custody and parenting arrangements that fit their respective schedules and circumstances. There will still be one “custodial” parent who maintains physical custody of the child, which will usually be the parent with whom the child resides more than half the time. This is true even with joint custody. The custodial parent retains the primary right to determine the physical residence of the child, with limitations.

If there is a dispute about custody, it is generally beneficial to retain the help of child custody attorneys or mediators to help craft parenting schedules, special visitation arrangements, and generally facilitate mutually-agreeable resolutions. Ideally, any disputes can be resolved without the need to go to court.

Help with Your Houston Family Law Matter

If you’re facing child custody, divorce, or other family law issues in Texas, get legal help protecting your rights by contacting the talented, compassionate, and experienced Houston family law attorney Maria S. Lowry at 713-850-8859.

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