Unmarried Parents in Tennessee Paternity & Custody

---

Who has custody of a child when the parents are not married in Tennessee? Does the unwed mother automatically have the sole legal custody the child? Does a father have rights if not on the birth certificate in TN? What Happens if the Fathers Name is not on the Birth Certificate? What rights do unmarried fathers have?

For more details, see Mason’s article published in the Tennessee Bar Journal, “You Are the Father! Untangling Custody Rights in Tennessee Between Unmarried Parents.”

We understand that unmarried parents face law which can be confusing and frustrating.  For both mothers and fathers, the process can seem much more difficult than it needs to be.  Know that in every situation, there are unique concerns.  The steps described are designed to protect mothers and fathers at various stages.  For example, paternity fraud is real.  Tennessee law, as in most states, includes a built-in protection for fathers by requiring DNA testing under certain circumstances.  This video is intended to be for educational purposes only.  We describe what the law says without consideration of what the law should be.

This video seeks to describe the process in general and not list every exception.  This video will not address the more difficult challenging circumstances of domestic violence, neglect, abandonment, drug addiction, or criminal acts and convictions.

Let’s get started. Tennessee child custody for unmarried parents begins with a single presumption. The child born out of wedlock is the mother’s legal offspring.

Who has custody of a child when the parents are not married in Tennessee?

An unwed mother is presumed to have full custody, both physical and legal.  Until a court order says otherwise, she is the primary residential parent with sole legal decision-making authority.

Does the unwed mother automatically have the sole legal custody the child?

Yes. An unwed mother automatically has the sole legal and physical custody of the child until a court order declares parentage.  There is a lot at stake.  There is a very specific process courts must follow.

How does an unmarried father fit into this legal reality? In general, follow these steps to resolve child custody in Tennessee:

Step 1. Genetic testing proves the man is the biological father.

Step 2. The biological father is named on the child’s birth certificate.

Step 3. Paternity is established according to law.

Step 4. The man is declared the legal father.

Step 5. The legal father sues for custody or visitation.

Step 6. The court determines custody.

Step 7. The court establishes child support.

Let’s take a closer look at each step.

1. Proving Paternity with Genetic Testing

We want scientific evidence proving the man is the natural father. Genetic testing provides that biological certainty. For our purposes, paternity testing, DNA testing, and genetic testing all mean the same thing.

In Tennessee law, a man is presumed to be the father when DNA test results show a 95% or greater probability of paternity and do not exclude him.[i]

About Paternity Testing

DNA samples are collected in different ways, but all samples require laboratory analysis. An easy swab test collects cell samples by swabbing the inside of the mouth – the father’s cheek and child’s cheek. Blood testing the father and child is possible, as is prenatal testing.

            Prenatal DNA testing is more involved. Many unwed parents agree to DNA testing during the mother’s pregnancy so they can start planning. Prenatal medical procedures include blood testing, amniocenteses, and chorionic villus sampling (or CVS). By being involved early in the pregnancy, the father may share prenatal, natal, and postnatal expenses with the mother.

            How to avoid a false positive? Fatherhood is a big deal. Everyone needs certainty – the alleged father, the mother, the child, DHS, the court. Incorrect sampling does occur. Irregularities can arise in sample collection, contaminated DNA, human error, chain of custody, or paternity lab analysis. Errors happen even in the best labs where every precaution was taken. The way to avoid a false positive paternity test is simple. Do not rely on one DNA test. Test twice!

            Can you rely on home test kit results?  Parents may not rely on home test kits for the legal purpose of establishing paternity. Direct-to-consumer DNA kits can be helpful.  They are easy to use and inexpensive. However, home test results cannot be used in court as proof of parentage. Chain of custody, errors in sample collection, and contamination of DNA are frequent problems with home testing.

            Legal paternity testing is different. Accredited paternity test companies have genetic test specialists who collect the DNA samples for lab analysis. These test results are used in court to prove parentage. A family lawyer should request two paternity tests even if the client must pay the entire cost. Both parties and the child will be ordered to submit to DNA testing. With two tests, both results should match. If they conflict – one yea, one nay – ask the court to order a third DNA test.

            Is the alleged father deceased? It is possible to obtain court-ordered legal avuncular DNA testing of the decedent’s aunt or uncle. This testing is typically used to add the deceased father’s name to the birth certificate and to prove paternity for social security survivor benefits.

2. Adding the Biological Father’s Name to the Birth Certificate

A putative father’s name may be added to the child’s birth certificate in limited circumstances. Putative means his legal status to the child has not been legally determined.

            What rights does a father have if he is on the birth certificate?

Even if a father’s name is listed on a child’s birth certificate as the father, paternity has not been established.

            Does signing a birth certificate establish paternity in Tennessee?

A father obtains legal enforceable rights to a child only after the court formally issues a court order determining parentage, custody, and visitation.

The putative father can voluntarily acknowledge paternity if:

• The child is a minor. (A court order is needed for an adult child.)
• The mother wasn’t married when the child was born or within 300 days before the birth.
• Both parents agree to add the putative father’s name.
• No father is currently named on the birth certificate.
• They follow the prescribed voluntary acknowledgement of paternity process.

Otherwise, the man will need a court order of parentage.

            Does the biological father have rights if he is not on the birth certificate?

A father obtains enforceable legal rights to a child only after the court formally issues a court order determining parentage, custody, and visitation.  A father’s legal rights are described in more detail later.  When paternity is blank on the birth certificate and the parents marry, they can agree to add the father’s surname. They must apply to Vital Records for a new certificate of live birth by subsequent marriage. This is not possible if the mother was married to someone else when the child was born or within the 300 days preceding the birth.

            If both parents are on the birth certificate but not married who has custody?

The unwed mother has sole legal and physical custody and the right to name her child. She chooses the child’s surname in Tennessee law. This means she could agree to give the child the putative father’s surname.  As a court order establishes paternity, custody, and visitation, a father may petition the court to address the child’s last name.

            What Happens if the Fathers Name is not on the Birth Certificate? 

A father obtains enforceable legal rights to a child only after the court formally issues a court order determining paternity, custody, and visitation.

After establishing paternity (which is the next step), the legal father can ask the court to change his child’s surname. The father has the burden of proving the name change is in the child’s best interests.

The judge considers several name-change factors:

1. What is the child’s preference?
2. What impact could this have on the child’s relationship with each parent?
3. How long has the child held the current surname?
4. What degree of community respect is associated with each surname?
5. What difficulty, harassment, or embarrassment might the child experience with either surname?

Parental preference does not justify a name change, although a particular Tennessee judge could have a unique perspective on this issue. Hiring a family lawyer who is familiar with area judges can be helpful.

3. Establishing Paternity in Tennessee Law

Obtaining custody or visitation starts with proceedings to establish paternity – no exceptions! Even after private DNA testing, the alleged father still has no parental or custodial rights. Why? Because he is not the child’s legal father.

Only the legal father has standing to sue for legal decision-making authority, parenting time, or visitation.[ii] Only the legal father has a constitutionally protected fundamental right to parent the child.  A father’s legal rights are described in more detail later.

How Does the Putative Father Become the Legal Father?

There are only 3 ways to establish paternity in Tennessee law:

• First: By voluntary acknowledgement of paternity in cooperation with the mother.

This uses Tennessee’s VAP program. The VAP program lets parents establish a legal father-child relationship without going to court. Paternity establishment by VAP is only possible during the child’s minority – up to age 18. Completed VAP forms are submitted to the Department of Health Vital Records.  Details on Tennessee’s VAP process are available online.

• Second: By filing a mutual paternity agreement with the court.

The court will enter a voluntary acknowledgement of parentage order on the couple’s presented paternity agreement. That is, unless the judge orders DNA testing. With the exception of the VAP for minor children, paternity can be established up until the child’s 21st birthday.

• Third: By filing a petition to adjudicate parentage with the court.

If the putative father rejects the VAP process, is unsure what to do, or flatly denies paternity, consult an experienced family lawyer about adjudicating parentage. DNA testing will be ordered. This paternity lawsuit can be filed by the mother, child, father, putative father, or DHS. The court establishes legal parentage, determines custody, and establishes child support.[iii]

4. Exercising Parental Rights as the Legal Father

The legal father enjoys the same constitutional liberty interest as the mother in the care, custody, and control of their child. He has standing to sue for joint or sole custody (or visitation). After the judge’s order of parentage, court proceedings shift to the task of determining child custody and establishing child support. The legal father has a right to access his child. Does he want parenting time or visitation? Will he seek joint legal decision-making authority? What about sole custody of his child? What unique circumstances are involved?

5. The Legal Father Seeks Court-Ordered Custody or Visitation

This is where proceedings can get really complicated. The parent who has postponed hiring a child custody attorney should delay no further.

            Does the legal father plan to co-parent the child?

A father must be prepared to present a strong case for shared custody with substantial parenting time.  The legal process may include a comparative fitness analysis, court-appointed guardian ad litem, and custody mediation. Whatever the parents’ circumstances, their child’s welfare is paramount in the court’s analysis.  When it comes to children born out of wedlock, custody the laws are the same.

            So what’s different for unmarried parents?  We know unmarried parents have the same rights as their married counterparts. Can the parents’ unique circumstances or a judge’s idiosyncrasies affect the outcome of a case? We know it’s unconstitutional for judges to discriminate against a parent based on gender. We know the court applies the same Tennessee child custody factors to every case.  It is the application of facts to law which can seem a bit different.

6. Determining Custody in Court

Child custody factors cannot be construed to affect or diminish the constitutional rights of either parent – married or unmarried. Both parents should enjoy maximum participation in their child’s life.

Factor by factor, the judge weighs the relevant evidence before the court and makes findings of fact. These are the types of questions presented:

• Who is the child’s primary caregiver?
• Where does each parent live?
• Has one parent taken on most of the responsibilities of raising the child?
• How fit is each parent morally, physically, mentally, and emotionally?
• Which parent is most willing to encourage and facilitate a close, continuing relationship between the child and both parents?
• Which parent’s lifestyle is more stable?
• Do the parents currently live together? Did they before?
• Which parent has bonded most with the child?
• Is there any history of domestic violence, child abuse, or child neglect?
• Is either parent unemployed or underemployed?
• What are the parents’ work or school schedules?
• Which parent can better provide for the child’s necessities? Meaning food, clothing, medical care, education, and so on.
• Does a child of 12 or older reasonably prefer one parent over the other?

Showing the level of love, affection, and emotional bonding between parent and child is essential. For exact language, see Tennessee Code Annotated Section 36-6-106.

Although every child custody factor has weight, some are critically important. The family law attorney should develop a legal strategy that presents the client’s best case to the court.

Can the Tennessee Court Assert Child Custody Jurisdiction?

For a Tennessee court to determine custody, it must comply with the Uniform Child Custody Jurisdiction and Enforcement Act. The UCCJEA requires that Tennessee have “home state jurisdiction” over the child or temporary emergency jurisdiction over the child who is here in Tennessee.

Your first thought may be, “Why wouldn’t it?” Asserting custody jurisdiction is not always straightforward. Unmarried parents may reside in different states. The child might reside in another state with a grandparent or guardian. One or both parents may be in the military, stationed in different states, or deployed.

The UCCJEA is a complex statute. Even experienced family lawyers may need to research law concerning your particular situation.  On MemphisDivorce.com, we have a more detailed page discussing home state jurisdiction and the UCCJEA.

            Can the court award joint custody to unmarried parents?  The court can award joint custody to unmarried parents.  Joint custody awards happen most between parents who exhibit the “cooperative spirit” essential to shared custody arrangements. Be ready to present a factually and legally solid co-parenting case to the court.

But that doesn’t mean co-parenting arrangements are without concern.[iv]  In Tennessee, with some important distinctions not discussed here, the custodial parent is described as the primary residential parent, or PRP, and the non-custodial parent is described as the alternate residential parent, or ARP.  Also, visitation schedules are described as parenting time or residential time. Your experienced family lawyer will be able to explain subtle differences between PRP, ARP, and decision-making authority as these terms are commonly used and negotiated in your area.

In the best interests of the child analysis, Tennessee courts are generally inclined to favor sole custody arrangements with an eye towards Tennessee’s stated preference for parents to enjoy maximum participation possible.

For instance, sole physical custody could provide a more stable environment for the child.  Many judges view that awarding one parent sole legal custody might avoid litigation, especially in high conflict cases.

For a more complete discussion about Tennessee custody laws, be sure to view our video, “How is child custody determined in Tennessee?”

            What kind of custody arrangements are possible?

We typically describe custody as either “physical” or “legal.” The child’s living arrangements fall under physical custody. The primary residential parent, or PRP, has the child living with him or her most of the time.

When we talk about legal custody, we mean a parent’s right to make important decisions about the child’s education, non-emergency health care, religious upbringing, and extracurricular activities. One parent may be granted legal decision-making authority, or both parents may share that responsibility. The custody decision must always be in the child’s best interests.

If the mother is the primary caregiver of the young child, as is often the case, then she is better positioned to be the PRP, with the father obtaining scheduled parenting time as the alternative residential parent or ARP. There are exceptions, and circumstances matter. Talk to an attorney. For additional reference,

            Do unmarried parents submit parenting plan agreements?

Yes, unmarried parents may submit parenting plan agreements.  Unmarried parents may enter into a parenting plan agreement, but there is a process. Court-ordered custody mediation helps parents settle legal decision-making authority, parenting time, vacation time, additional child support for extracurricular activities, and so on. Was mediation only partially successful? A custody trial is set to resolve any outstanding issues.  Our advice here is to learn your options. Know what you can and should ask for in preparing a proposed permanent parenting plan.  Read and learn what parenting rights exist under Tennessee law.  They are listed in Tennessee’s mandated permanent parenting plan form.

MemphisDivorce.com has a detailed section on parenting plans.  Also, our Tennessee Parenting Plan book, available on Amazon.com, includes eight examples of parenting plans for actual cases and offers more details concerning co-parenting and child support.

            What is the most common child custody agreement?

There is no “standard” or one-size fits all parenting time program.  Many judges and lawyers refer “standard” parenting time to mean fathers having a minimum of 80 nights per year. In general, this means every other weekend, two weeks in the summer, and split holidays.

Fathers may seek more parenting time than “standard.”  Equal, or shared parenting, generally means 182.5 nights per year.  The details of what you prefer and what can be argued should be discussed with your family lawyer.

If successful co-parenting is highly unlikely, then the mother will likely be awarded full custody (unless she is proved unfit). The father will likely be ordered to pay child support as the noncustodial parent.  A parent who chooses not to embrace a relationship with his offspring will still be ordered to pay child support.

Is one parent a minor? Although not alimony, an adult noncustodial parent may be ordered to pay support and maintenance to the minor custodial parent.[v]

            How does establishing paternity benefit the child? Along with financial support, paternity establishment benefits the child in truly profound ways. Once legitimated, the child:

• Has the right to inherit from both father and mother.
• Will be able to access each parent’s medical history.
• Can be named a direct beneficiary on the parent’s life insurance policy.
• Becomes a beneficiary of Social Security benefits.
• Becomes a beneficiary of a service member or veteran parent’s benefits.

Hire an experienced family lawyer to guide you through this legal minefield. There are so many different situations when it comes to paternity, custody, and child support, no family lawyer has “seen it all.” Know your rights.

UNMARRIED FATHER’S RIGHTS

            What rights do unmarried fathers have?

In Tennessee, an unmarried father has the right:

• To establish paternity by voluntary acknowledgement of paternity or court order.
• To access his child and fully exercise custody or visitation rights.
• To bond with his child, build a relationship with his child, and be involved in his child’s life.
• To all the statutory parenting rights listed in the parenting plan form.
• And to add the child as a dependent to his healthcare insurance plan.

There are additional rights granted under Tennessee law for both parents.  They are often referred to in conversation by judges and family lawyers alike as “non-custodial parental rights” or just “parental rights.”  For details, see Tennessee’s parenting plan form.

            Can a mother deny a father access?

If paternity has not been established by court order, then the mother has every right to refuse access to the putative father.  Before refusing a father access to the child, mothers should discuss this decision with an experienced family law attorney with an eye toward avoiding unnecessary litigation and conflict.

After establishing paternity, the father has the legal right to spend time and be involved with his child. He may seek custody with joint legal decision-making. The court may order supervised or unsupervised visitation, it depends. The mother who denies access in violation of the court’s order may be held in contempt.

With an infant, the mother is typically present during the father’s visitation. As the child gets older, the father may have visitation outside the mother’s presence. Initially, visitation may be limited to a few hours, but could develop into overnights, vacations, and holidays.

            Can a father take a child away from the mother in Tennessee?

An unmarried father may not take a child from the mother without court intervention.  Emergency orders are possible under exceptional circumstances.  Is the child living in a dangerous environment? Being abused or neglected in the mother’s care? Talk to an attorney about taking action to obtain custody.

Thereafter, the mother could be awarded supervised visitation with conditions, as in a drug abuse situation. In extreme cases of abuse or neglect, the mother’s parental rights could be terminated. The father could then obtain sole custody.

7. Establishing Child Support Orders

Parents have a co-equal responsibility to financially support their child, so child support orders will follow a custody determination. Using Tennessee Child Support Guidelines, the alternative residential parent will be ordered to pay child support to the primary residential parent.  We have a very detailed section on MemphisDivorce.com covering just about every aspect of setting Tennessee child support.  Also, check out our Blog’s Child Support categories for case summaries and legal updates.  Also, download our free Tennessee child support calculator app for your smart phone.

Differences Among Counties and Courts in Tennessee

When you ask an experienced family law attorney a question and he or she says, “hmm, let me think about that,” there are good reasons.  First, as we said many times, every parent has different concerns, values, and priorities.  Second, different courts in different counties hear unmarried parents’ cases.  For example, in Shelby County, only Juvenile Court hears them.  There are a separate set of rules and procedures for Shelby County’s Juvenile Court as compared with other counties’ courts.  Third, each local court may have “local rules” setting forth forms and procedures unique to that county and court.  Finally, individual judges may have differing opinions on the appropriate procedure, whether seeking to help financially less-able parents move through the process or strictly adhering to the legal requirements.

Knowing what is required and exploring “what can be done” are at the core of family law.  Sometimes, family lawyers can help a parent “swim upstream” and go against conventional procedure.  Some procedural legal requirements have exceptions, allowing a local judge to deviate based on unique situations.

Experienced family lawyers know that unmarried parents’ law is complex and detailed.  To answer challenging questions, family lawyers read and study the state statutes, look at applicable court rules, like the Juvenile Court Rules, read the court’s local rules, or consult with a court clerk for a form or process.  Then, family lawyers will offer a legal opinion and a proposed process for confronting a particular client’s concerns.

Here are some final thoughts.

Tips for Unwed Mothers

• Hire and consult with an experienced family law attorney early in your pregnancy. Don’t procrastinate.
• Learn the legal process in your jurisdiction. Ask questions.  Every parent likely has unique concerns about the process.  Avoid disputes when possible.  Find ways to co-parent.
• Be prepared to complete the mother’s worksheet when you arrive at the hospital to deliver your baby.
• You have a legal right to child support from the other parent. Your ability to receive child support depends upon paternity establishment.
• If you don’t know who the biological father is, then discuss with your lawyer the possibility of court-ordered DNA testing of the most likely candidates.
• Learn what rights the father has and the limitations on those rights.
• To avoid being bullied, learn the scope of your rights and obligations. Read the statutory parental rights in Tennessee’s permanent parenting plan form.
• Absent domestic violence or some other serious problem, it’s in your child’s best interests to have a positive relationship with the father.

Tips for Unwed Fathers

• Hire and consult an experienced family lawyer immediately upon learning of the pregnancy. Do not procrastinate.
• Learn the legal process. Listen to your attorney about making sure this process is fair and reasonable. Ask questions. Avoid disputes when possible.  Find ways to co-parent. Every parent likely has unique concerns about the process.
• Undergo DNA testing through a reputable company.
• Learn your parenting rights and obligations as the legal father. Read the statutory parental rights in Tennessee’s permanent parenting plan form.
• You have a co-equal responsibility with the mother to financially support your child.
• Child support can be ordered retroactive to your child’s birth and include birthing expenses. By delaying paternity establishment, you could find yourself owing tens of thousands of dollars seemingly overnight.

Lots of unmarried mothers and fathers are successfully co-parenting their children. From the outset, work to resolve custody issues in your child’s best interests. Doing so can help foster and encourage a better father-child relationship. And that is good for Tennessee families.

This video is not a substitute for legal advice. Every state and local jurisdiction may have important differences in legal terms, forms, procedures, requirements, rules, and exceptions to those rules. With the passage of time, laws evolve and change. Forms found online might not follow exactly what the law requires at the moment. Always obtain specific legal advice from an experienced family lawyer in your local area.

ENDNOTES:

[i] Tenn. Code Ann. § 36-2-304.

[ii] Tenn. Code Ann. § 36-6-301.

[iii] Tenn. Code Ann. § 36-2-305.

[iv] Tenn. Code Ann. § 36-6-101(a)(1).

[v] Tenn. Code Ann. § 36-5-102(b).