For various reasons, a child’s father may be omitted from the child’s birth certificate. In some circumstances, the father may nevertheless want the rights and responsibilities of fatherhood, including the right to custody of the child. But if the father is not on the birth certificate, can he fight for custody?

Frequently, the father can fight for custody even if not on the birth certificate, usually by establishing paternity. Fighting for custody requires understanding and working diligently through the court system. The dedicated, experienced attorneys at The Larson Law Office are here to guide and support you. If you reach out today, we can provide honest advice about your rights and options.

How Do You Establish a Parent-Child Relationship?

To establish she is a child’s parent, a woman may generally:

Give birth to the child,
Adopt the child, or
Establish her maternity in court.

A man benefits from a presumption of paternity if he:

Was married to the mother at the time of conception or birth;
Married the mother after the birth, voluntarily asserted his paternity and registered his paternity with the Texas Vital Statistics Office, is listed on the birth certificate, or promised in writing to support the child as his own; or
Lived in the child’s household for two years after the child’s birth and referred to the child as his own.

If a man does not qualify for presumed paternity, he may establish paternity through:

Acknowledgment of paternity,
Adjudication, or
Adoption.

Keep in mind that Texas law presumes paternity based on marriage—not the birth certificate. Therefore, if you are not married to the child’s mother, you may want to file an acknowledgment of paternity even if you are on the birth certificate.

How Can You Establish Paternity?

Unless you surrender your parental rights, you generally establish custody rights by establishing paternity. Your options vary depending on whether the mother supports your claim and whether anyone else can claim or is claiming paternity.

Acknowledged Paternity

If the child’s mother agrees that you are the child’s father, you can establish paternity through an acknowledgment of paternity. The acknowledgment must be in writing and be signed under penalty of perjury by the mother and the man claiming fatherhood. Also, it must state:

That the child does not have another presumed, acknowledged, or adjudicated father;
That the acknowledgment has the effect of a judicial determination of paternity; and
Whether the child had undergone genetic testing and, if so, what the results indicated.

An acknowledgment may be invalid even when signed by the mother and claimed father if the child has a different presumed, acknowledged, or adjudicated father. For a presumed father, you can overcome the invalidity if the presumed father signs a denial of paternity. An acknowledged or adjudicated father cannot generally consent to make the acknowledgment valid.

Adjudicated Paternity

If the mother does not consent, another man is the acknowledged or adjudicated father, or the presumed father will not deny paternity—you can file for adjudication. To begin the process, you file a petition with the court.

That petition must explain the circumstances of your paternity claim, state whether any party to the case has a current or pending protective order, and include copies of any such protective orders. The court may appoint the child their own attorney to represent the child’s best interests.

Timeline

The law sets time limits on filing a petition to adjudicate paternity. This time limit varies based on the following factors.

If the child has a presumed father—the petition must be filed by the child’s fourth birthday unless the presumed father did not live or have sex with the mother during the conception window or the presumed father was misled to believe the child was biologically his;
If the child has an acknowledged or adjudicated father—the petition must be filed within four years of the acknowledgment or adjudication; or
If the child does not have a presumed, acknowledged, or adjudicated father—the petition can be filed at any time.

Regardless, once the child turns 18, the child is the only person who can file.

Genetic testing

Typically, you next confirm your biological relationship with the child through genetic testing. Genetic testing is the only way to establish paternity if the child has a presumed, acknowledged, or adjudicated father. If genetic testing confirms you are the biological father, the court declares you the child’s adjudicated father.

If the mother refuses to let you test the child’s genes, you may request the court order a test. The court may deny the request if it is in the child’s best interests for their presumed father to remain their legal father.

How Can You Establish Custody?

The question remains: If the father is not on the birth certificate, can he fight for custody in Texas? In short, once you establish paternity, you gain the rights and duties of parenthood, including the right to custody of the child.

But custody always depends on the child’s best interests, and the custody process may be a slow transition. Giving your child time to get to know you is essential to building a strong relationship with them, so you may have limited custody initially.

Consult a Family Lawyer

Even if the father is not on the birth certificate, establishing a father’s custody rights can be simple if the mother consents and no other potential father is in the picture. Otherwise, you may need to fight through the court system. For help navigating paternity and custody and advice on building a strong case, contact us today for a free consultation.

If the Father Is Not on the Birth Certificate, Can He Get Custody?