What Legal Rights Do Fathers Have in Child Custody Cases?

Many people have a misconception that in custody cases, a mother always has priority. That’s not the case, but it’s still easy for fathers to feel at least like the underdog in a custody case. A family lawyer in Stafford, TX, can help you understand what your rights are and defend them in a custody battle.

Before you can defend your rights, it’s critical that you defend the reality of your paternity. If you don’t establish paternity, you don’t have any legal standing to apply for your rights in court. In some situations, there’s a “presumption of paternity,” and you get your rights automatically. This happens if a child was born to you while you were married to the mother, and this happened less than 301 days before your marriage ended. If a child was born to you before you got married, paternity is still presumed so long as you are officially named on the child’s birth certificate, you willingly state that you are the father, you promise in writing to take full responsibility for your child, and you file your paternity with the Texas Bureau of Vital Statistics. 

If you and the child’s mother were never married, the state will still presume your paternity if you have lived in the child’s household continuously from birth to the age of two and have stated and claimed the child as your own during that time. If presumed paternity doesn’t apply in your case, you will then have to take steps to establish your legal right to be considered the father of your child. One way to do that is a DNA test. If you and the child’s mother agreed that you are the father, then the two of you can sign an Acknowledgement of Paternity (AOP) form, which must then be filed with the Texas Vital Statistic Unit.

Once you have established your paternity, all your rights kick in, and it’s important to remember that Texas law doesn’t allow courts to factor a parent’s gender into considerations of their rights. Until evidence is presented to the contrary, the courts must presume that both parents are equally capable of caring for their child in all respects. Here are some of the rights that your lawyer will help you defend:

Texas uses the term conservatorship rather than custody, but the idea is the same. The courts do not automatically give custody to mothers, but in every case, the court’s primary consideration is the child’s best interests. The presumption is typically that the best setup for the child is for both parents to have custody. While the details may mean that one parent ends up with more time with the child than the other, the goal will still be for both parents to have ongoing, frequent contact with their child.

If your child’s mother is not capable of caring for your child, then you have the right to request sole managing conservatorship. The mother would then, in most cases, become a “possessory conservator” or even have no rights at all in some extreme cases. Most of the time, the mother would then keep some of her parental rights, but you would have physical custody for most of the time at your primary residence, and you would also make all major decisions about important issues in your child’s life. This would include educational decisions, decisions about medical needs, religious upbringing, etc.

As stated above, the courts assume that both parents should be involved in their child’s life until there is evidence to the contra. To prove that you should have sole conservatorship, you’ll need to provide proof of neglect or abuse, domestic violence, abandonment, or show that the mother has a substance abuse issue or suffers from alcoholism and is not recovering or attempting to do so.

You have the right to spend time with your child, even if the child’s mother is awarded primary custody, unless the court’s specifically remove your parental rights. As mentioned above in reference to the mother, that’s hard to do and requires iron-clad evidence. 

There are two terms used in Texas law to refer to two types of visitation. The term “access” refers to having interactions with your child through phone, text, or video. The term “possession” speaks to when you actually spend time with your child in person and decide where to go and what activities to take part in. While the court can order possession and access, it’s always best if the child’s parents can come to an agreement about a visitation schedule. This allows your family to keep control and allows you to work out a schedule that best fits your work needs and other life obligations. 

However, if you can’t come to an agreement with the child’s mother, then the court will usually enact the “standard possession order.” The standard possession order (SPO) is used in cases where one parent is the sole conservator and the other is a possessory conservator, and the usual arrangement is for the possessory conservator to have time with the child every Thursday night for several hours, on alternating holidays, on the first, third, and fifth weekend of each month, and for at least one month in the summer. However, the courts can ignore or change the SPO in situations where they believe it’s not in the best interests of a child. If a child is very young, usually under the age of three, the SPO may not apply at all.

Even when a custody order has been laid down, you have the right to request a modification if you experience a change in circumstances. Maybe your original custody order only allowed you limited visitation because of your work schedule, but you now have a schedule that makes it possible for you to see your child more. If you had your visitation limited because of a substance abuse issue but have dealt with it and turned your life around, the court may be willing to make a change to the order. Conversely, if you notice signs of neglect or abuse when you see your child, you may be able to petition the court to have primary custody shifted to you or to end the mother’s visitation rights if you believe she is harming your child.

You don’t have to go through a child custody dispute by yourself, and you shouldn’t. A lawyer with experience in family law and knowledge of the Texas Family Law Code can help you understand your rights as a father and then advocate for them on your behalf. We can help you gather evidence, prepare for hearings and court appearances, negotiate with the child’s mother, and overall prepare a strong case to achieve your goals.

You have parental rights as a father, and we want to help you defend those rights. Contact KGK Family Law right away for help in Sugarland, Houston, Fort Bend, Stafford, and the surrounding areas.