Having a child should be a magical experience filled with excitement and joy. For many couples who have a child prior to being married, it can be filled with uncertainty. Having a child out of wedlock may be scary, depending upon the type of relationship you have with your child’s mother, and even her friends and family. If you are no longer romantically involved with the mother, it certainly complicates matters. It can also significantly impact the connection you have to your child.
Below are some FAQs addressing unmarried father’s rights. These answers are designed to help you understand what can be done legally to protect those rights.
Who has child custody in Nashville when you’re unmarried?
In Tennessee, an unmarried mother automatically has both physical and legal custody of the child until the father establishes paternity. However, once paternity is established, you have the same rights as any father does, under the law.
Unmarried fathers who are committed to playing an active role in their children’s lives may face some obstacles when it comes to shared custody of their children. This is why it is paramount that you obtain legal advice from a professional who concentrates on family law issues. If you wish to be involved in your child’s upbringing but are not legally married to your child’s mother, you need guidance on the proper steps to take to secure and enforce that right.
What is the procedure for establishing paternity in Tennessee?
In Tennessee, state law as it pertains to child custody requires that parentage must first be established in any contested paternity case. If you wish to participate in your child’s life and his or her mother isn’t permitting that, you have a right to petition the court to designate you as your child’s father by law. This will give you the ability to enforce your parental rights through the courts, when necessary.
This process requires genetic testing be performed on the parties and child by order by the court when, in this case the father, submits an affidavit requesting to establish paternity. The affidavit includes various factual information that would show the court that there is a reasonable probability that you are the child’s parent.
If parentage is determined, how can my child take my last name?
It’s natural to want your child to carry on your last name. Whether you have a son who you hope will grow up and have a son of his own, or you have a daughter who prefer to keep her last name even after marriage, it’s a way to ensure your family name for future generations to come. It’s not always as easy as asking the mother to just change your child’s last name to make you happy, and if you’ve had to engage in litigation to be recognized as having rights to your own child, odds are that changing a last name may be a battle as well.
Under Tennessee law, the mother of a child born outside of marriage has sole discretion in choosing the child’s last name. If you cannot come to an amicable decision before or after the birth of your child, you will need to petition the court to change your child’s last name. Be aware, however, that petitioning the court doesn’t automatically mean that you will succeed unless you are able to prove that the name change is in your child’s best interest.
Factors the court will consider in determining whether a name change meets the best interests of the child include the:
- Child’s preference;
- The potential effect of the name change on the child’s relationship with each parent;
- Length of time the child has had his or her present surname;
- Degree of community respect associated with the present and proposed surname; and
- Difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed last name.
What can I do to ensure my rights as a father if my child’s mother marries another man?
You would be understandably nervous about losing your role as father to another man if your child’s mother remarries. There are circumstances that allow you to seek being established as the putative father to guarantee your right to raise your child and remain in his or her life regardless of the marital status of your child’s mother.
Under TN Code § 36-2-304 (2019), you may be presumed to be the child’s father when:
- The child is born within 300 days after your marriage to the mother is determined invalid or you divorced.
- You attempted to legally marry each other but your marriage was declared illegal, void or voidable and you:
- Acknowledged paternity in writing filed under the putative father registry pursuant to § 36-2-318;
- Consented in writing to be named the child’s father on the birth certificate; or
- Are obligated to pay child support under a written voluntary promise or court order.
- The child lived with you in your home as a minor and you openly held the child out as your biological child.
- You took a paternity test as provided in § 24-7-112 for which there was no exclusion, and based on the results, there is at least a 95% chance of
Do I have a right to parenting time in Tennessee?
Yes. Once you have established paternity, and a judge has issued a court order to that effect, you can petition the court for a custody hearing which will decide a parenting time arrangement and which parent will be the primary residential parent of the child. Depending on your circumstances, you will be requesting either physical custody designating that the child will live with you and visit the mother, or you will be requesting parenting time (commonly referred to as visitation) on a consistent schedule.
You and your child’s mother can work together to develop a parenting plan and parenting time schedule, but if you are unable to come to an agreement, the court will establish a plan for you that is in the best interest of the child.
If you want to be a dad who spends time with his children and has an influence in how they are raised, you can establish paternity and assert your right to play a vital role in your child’s life regardless of whether the child’s mother agrees or not. Working with an experienced, Nashville family law attorney will make sure that you have a strong advocate on your side who will protect your right to be a parent to your child.
Establishing paternal rights and getting parenting time with your child when you are unmarried can be a challenge. With the advocacy and support of an experienced, Nashville family law attorney from the law firm of Miller Upshaw Family Law, PLLC, you will feel better equipped for the task. We protect your interests and keep your child’s best interests in mind in everything we do. You are encouraged to fill out our contact form today or call 615-391-4200 to schedule a consultation with an experienced Nashville divorce attorney.
Karla C. Miller has devoted her entire career to the practice of family law in Tennessee. She attended Auburn University and Nashville School of Law, and upon graduation in 1996, she opened her own law firm and has been assisting families throughout Tennessee since then. Learn more about Karla C. Miller here.