Unmarried Parents FAQs: Tennessee Child Custody

Tennessee child custody laws for unmarried parents require relating child custody and child support laws. Tennessee child custody law for unmarried parents can be very specific with requirements which may not seem fair. Can a father get custody if not married?

For more discussion, see Mason’s video, Unmarried Parents in Tennessee: Paternity & Custody and article, You Are the Father! Untangling Custody Rights in Tennessee Between Unmarried Parents, published in the Tennessee Bar Journal.

What is the presumption of paternity in Tennessee law?

Unmarried Parents FAQs | Tennessee Child Custody Law

Unmarried Parents FAQs | Tennessee Child Custody Law

In Tennessee, like most states, a husband is presumed to be a child’s biological father. This presumption may be rebutted, though. In most cases, the presumption of paternity is challenged by a DNA test. There are exceptions and strict requirements. See Tennessee Code Annotated Section 36-2-304 on the presumption of parentage for more details.

What does paternity mean in Tennessee child custody laws?

Traditionally, paternity was established by an unmarried mother who filed a petition with the court to establish “paternity.”  In Tennessee, that traditional legal action was abolished in favor of a petition to establish “parentage” which can be filed by the mother, child, father, putative father, or government.  For a more detailed discussion, see Fathers’ Rights in Tennessee Child Custody.

What does legitimation of a child mean in Tennessee law?

Traditionally, legitimation of a child was established by a father who filed a petition to legally establish himself as the child’s father. In Tennessee, that particular legal action was abolished in favor of a petition to establish “parentage” filed by the mother, child, father, putative father, or government.

What does putative father mean?

In general, a putative father is a man whose legal status to a child has not yet been legally determined. The man either claims to be the child’s father or claims to be the father to a child born out of wedlock at the time of that child’s birth. In Tennessee child custody laws, there are very specific restrictions limiting the circumstances wherein a putative father may seek to be established as the father of a child born to a woman married to another man. Restrictions can include a limited time frame in which to make the legal claim. See Tennessee Code Annotated Section 36-2-304, presumption of parentage, for more details.

What does a petition to adjudicate parentage mean in Tennessee?

Under Tennessee child custody law in general, the petition to adjudicate parentage is the legal process by which a parent, putative father, or government seeks to legally establish who the child’s father is. In Tennessee, this particular legal action can be filed by the mother, child, father, putative father, or government.  The result will be a Tennessee court order establishing the child’s legal parents, a custody determination, parenting time (visitation), establishment of parental rights, and child support order.

What is a voluntary acknowledgement of paternity in Tennessee law?

In Tennessee child custody law, a Voluntary Acknowledgement of Parentage is a court order entered following the parent’s agreement on paternity (unless the court orders DNA testing on its own motion). A simple legal process for an unmarried mother to establish paternity with the biological father. This process will allow the father’s name to be added to the birth certificate and if the parents choose, for the child to have his last name. Both parents must affirmatively acknowledge their parentage and comply with the requirements of Tennessee Code Annotated Section 36-2-311.

What is Tennessee child custody law for unmarried parents?

In Tennessee child custody law, parents who are not married must establish parentage first. Establishing parentage essentially means establishing paternity. This can be accomplished by voluntary acknowledgment of paternity or by hearing following court-ordered DNA testing. Second, child custody and visitation, or parenting time, must be determined. Finally, child support is ordered.

Can a father get custody if not married?

Can a father get custody if not married?

Yes. It is unconstitutional for judges to discriminate against a parent based on gender.  For more discussion about custody disputes, see Child Custody Laws in Tennessee.

Deciding the Last Name for Children Born of Unmarried Parents or Out of Wedlock

Tennessee law states that an unmarried mother chooses the child’s surname.  So, a mother has the option of agreeing to use the last name of the father if she wants.  But what if the father wants to change the surname of his child after being declared the father?  The father may ask the court to change a child’s last name.  Tennessee law prevents a father from winning unless the last name change promotes the child’s best interests.  Factors for courts to decide whether changing a child’s last name will be in the child’s best interests include: (1) the child’s preference, (2) the potential effect on the child’s relationship with each parent, (3) how long the child has had his or her current last name, (4) the degree of community respect associated with each last name, and (5) the difficulty, harassment, or embarrassment that the child may experience from bearing either its present or its proposed last name.  The parent seeking to change the child’s last name has the burden of proof that the change is in child’s best interests.  A parent’s desire or preference is not sufficient for a court to justify the change.  Keep in mind, though, as one could imagine, a particular Tennessee judge may have his or her own unique perspective on this issue.

There have been a number of name change cases recently.  Search this web site for “name change” to get a list of appellate cases addressing how judges interpret this law.

What if I am paying child support without a court order of parentage in Tennessee?

In most situations under Tennessee child custody and child support laws, once a father is legally established as a parent to a child born out of wedlock, his child support obligation attaches. If that father has not been paying child support pursuant to a legal process establishing such child support by court order, then he can be ordered to pay child support retroactively to the child’s birth (including birthing expenses), regardless of the financial support he actually provided. Exceptions in these situations can be very limited. Experienced Tennessee family lawyers strongly recommend that fathers of children born out of wedlock obtain competent legal advice immediately. A father who finds himself in this situation is usually advised to seek DNA testing to determine paternity, even when there is little doubt about his fatherhood. For the father, there is no legal advantage to waiting for time to pass even if he is paying considerable child support and, possibly, also living with the mother and her child.

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