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Child Custody for Unmarried Parents in Memphis, TN

Jan. 22, 2020

According to the Pew Research Center, one in four parents living with a child in the United States is unmarried. Unlike a married couple, unmarried parents don’t always have a straightforward legal relationship and face a unique set of challenges when determining custody in the event the couple decides to split up.

Tennessee child custody law can be complicated and, in many cases, unfair toward unmarried parents. Memphis family attorney Shannon Jones has spent his career protecting the rights of children and parents resolving complicated custody disputes. Below, we’ll address some of the most common questions parents have about establishing paternity, paying child support, and what the law means for unmarried parents across Tennessee.

Who Is Presumed to Be a Parent Under Tennessee Law?

Establishing legal fatherhood, or paternity, is one of the most challenging issues unmarried parents in Tennessee face. For married couples, the husband is presumed to be the legal father. When the mother is unmarried, the child doesn’t have a legal father until paternity is established through a DNA test.

This test not only settles custody and child support disputes, but it also ensures the child receives the same benefits as children of married couples, This could include inheritance, social security, and health insurance through the father’s employer. For more details, refer to Tennessee Code Annotated Section 36-2-304.

How Is Paternity Established?

In the past, unmarried mothers established paternity by filing a petition with the court. This is no longer the case. Today, the child’s mother, father, putative father, or the government can file a petition to establish “parentage.”

What Is the Legitimation of A Child?

Traditionally, father’s who wanted to be recognized as a child’s legal father would file a petition. Similar to establishing paternity, this process has been abolished and replaced with the mother, child, father, putative father, or government petitioning to establish parentage.

What Does Putative Father Mean?

A putative father is a child’s biological father who has not yet established paternity or filed a petition to establish paternity. In some instances, the putative father could also refer to the man the mother claims is the father of her child. As a man whose legal relation or status to a child has yet to be determined, a putative father’s legal rights in regards to the child can be complicated and uncertain.

Under Tennessee law, there are specific restrictions to the circumstances where the putative father can take action and establish parentage of a child born out of wedlock. In most cases these restrictions involve time.

How Does the Tennessee Child Custody Law Affect Unmarried Parents?

Under Tennessee law, unmarried parents must first establish parentage or paternity before deciding on custody, visitation, or child support. If parentage isn’t established by means of volunteering, the father must undergo court-ordered DNA testing.

What Is the Legal Process of Determining the Last Name of Children Born to Unmarried Parents?

In most cases, children born to married parents usually take the father’s last name. But for children born out of wedlock, these norms aren’t so clear. Under Tennessee law, the unmarried mother has a legal right to choose the child’s last name. This means she can choose either her surname or the surname of the paternal father. There are instances where the process can become complicated if (after legal parentage has been established) the father wants to change the child’s surname to his own.

In Tennessee, this can only happen if the name change is deemed to be in the child’s best interests. This is determined by the court and includes a number of factors including:

  • The child’s preference (if old enough to decide)

  • The length of time the child has had their current surname

  • How the name change could impact the child’s relationship with both parents

  • Any embarrassment or harassment the child may experience with his or her current or proposed name

For parents seeking a name change, the burden of proof is entirely on them, meaning they have to prove that a name change is in the child’s best interest.

What Is a Petition to Adjudicate Parentage?

Under child custody laws in the state of Tennessee, either parent, the putative father, child, or government entity can file a petition to adjudicate parentage to establish the identity of the child’s father legally.

When the petition is filed, a Tennessee court order will establish the child’s legal parents along with custody details, visitation rights, the establishment of parental rights, and child support order.

What Is the Voluntary Acknowledgment of Paternity?

After the court and parents agree to terms of paternity and a court-ordered DNA test is deemed unnecessary, the court will enter a Voluntary Acknowledgement of Parentage. Both parents are expected to fully abide by the arrangement and comply with all requirements of Tennessee Code Annotated Section 36-2-311.

What Happens if I’m Paying Child Support without A Court Order of Parentage?

After establishing the legal identity of a child’s father, he is then expected to comply with child support arrangements in the event the couple is no longer together. If the father did not pay child support before paternity was established, he could be ordered to child support retroactive dating back to the child’s birth, including expenses related to the birth.

Due to the complicated nature of these cases, fathers of children born out of wedlock should protect themselves by consulting with a knowledgeable family lawyer as soon as possible to discuss your financial obligations and rights. It’s usually in your best interest to seek a DNA test, even if there is little question about paternity.

Contact an Experienced Memphis Child Custody Attorney

No matter the circumstances, child custody cases are complicated and emotionally draining for everyone involved. They become even more complicated when the parents aren’t legally married. From establishing paternity to disputing the child’s name and deciding on visitation rights, it is in your best interest to hire an experienced lawyer to help protect your rights and your interests.

Attorney Shannon A. Jones has represented families in the Memphis area for over 20 years and is prepared to listen to your story and advocate for you. To take the first step in protecting you or your child’s future, contact him at (901) 390-9041 or reach out online.