For married couples, Father’s parental legal rights are established as soon as the child is born. In fact, if married, Father and Mother have equal legal rights to the child. However, this is not the case for unwed parents. Unwed fathers must take additional steps to establish paternity to protect his legal rights and to be able to exercise co-parenting time with the Child should his relationship with Mother become rocky.
The first step to establish paternity is to be listed on the child’s birth certificate or complete a voluntary acknowledgement of paternity through the Department of Human Services. While a great start, this step does not give unwed Fathers any legal rights to the child in the event of a custody dispute. Even if the Mother of the child allows Father informal visitation with the Child, Father still must establish paternity and custody through the Court. Father may submit to a DNA test; though this alone is not a means of establishing legal rights; the Court must still become involved. Pending establishment of paternity by the Court, Father is considered a nonparent of the Child as Tennessee Code Annotated § 36-2-303 provides that custody of a child born out of wedlock is with the Mother.
Initial Custody Determination through Court Order
Acknowledging paternity is not enough to allow Father any custody or visitation rights. These vital legal rights are needed to continue a relationship with the child if Father and Mother’s relationship comes to an end. In the recent case, Milton v. Harness, the Court of Appeals explained that “…until such time as the trial court enters an order establishing Father to be the Child’s legal father, there exists no legal parent-child relationship between Father and Child.” The Court further clarified that even if Mother listed Father on the birth certificate, Mother admitted that Father was the biological father of the child, the parents lived together, or Father submitted to a DNA test (outside of Court), Father would still not have legal status as a parent.
A word of caution as to the common mistaken belief that a Custody Order has been entered when a Child Support obligation is determined. Tennessee law is clear in that regardless of marital status, both parents are responsible for supporting the child. This holds true even if Father has no desire to continue a parent-child relationship with the Child. Even though a Father does not have any legal rights to visit the child or to make a major decision regarding medical or educational issues for the child, he may still have a child support obligation. If an action is filed in the Child Support Division of Juvenile Court to establish paternity, this does not establish Father’s rights to custody, visitation, or decision making for the child. A separate custody order must be sought through the court.
If you are a Father to a child born outside of a marriage, it is very important to know your rights and how to establish paternity so that you can continue a parent-child relationship with your child.