Establishing Paternity & Child Custody

Under Tennessee law, absent a court order of custody to the contrary, custody of a child born out of wedlock is with the mother. As a result, if a father is seeking custody of a child but is not married to the child’s mother, the father must obtain a court order of custody from a court of competent jurisdiction in order to exercise his parental rights and parenting time with his child without the mother’s agreement.

While some unmarried parents are on amicable terms and able to agree to a custody arrangement informally, many fathers throughout Tennessee often find themselves in a situation where the mother of their child will not permit them to have access to their child. Other times, the mother may permit the father to have access to their child without an order of custody, but only if certain conditions or restrictions unilaterally imposed by the mother are satisfied. Thus, in order for a father of a child born out of wedlock in Tennessee to fully exercise his parental rights, it is often necessary to petition a court of competent jurisdiction to obtain an order of custody. Even in situations when unmarried parents are generally able to agree on issues pertaining to custody and child support, it is still generally advisable to obtain an order of custody formally setting forth the parents’ agreement in the event a disagreement arises between the parents later on.

When a father of a child born out of wedlock wants to obtain an order of custody, he will generally initiate the process by filing a petition or complaint to establish parentage in a Tennessee court of competent jurisdiction. Both the mother of a child and a man claiming to be the child’s father have standing to file a complaint or petition to establish parentage of a child in Tennessee. In certain situations, Tennessee law presumes a man to be the father of a child.

In Tennessee, a man is rebuttably presumed to be the father of a child in the following scenarios:

• The man and the child’s mother are married or have been married to each other and the child is born during the marriage or within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
• Before the child’s birth, the man and the mother have attempted to marry each other in compliance with the law, although the attempted marriage is or could be declared illegal, void, or voidable; and
• The man has acknowledged his paternity of the child in a writing filed under the putative father registry established by the department of children services, pursuant to Tennessee law;
• The man has consented in writing to be named the child’s father on the birth certificate; or
• The man is obligated to support the child under a written voluntary promise or by court order.
• While the child is under the age of majority, the man receives the child into the man’s home and openly holds the child out as his natural child; or
• Genetic tests have been administered as provided by Tennessee law, an exclusion has not occurred, and the test results show a statistical probability of parentage 95% or greater.

Even if one of the above presumptions of fatherhood apply in a particular case, the presumption of paternity can be rebutted in an appropriate action. The standard of proof in an action to rebut paternity is by preponderance of the evidence. In addition, a Tennessee court of competent jurisdiction may enter an order of parentage upon the agreement of the mother and father, unless the court orders genetic testing on its own accord.

In Tennessee, a complaint to establish paternity may be filed in the county where the father resides, the county where the mother resides, or the county in which the child resides or is present when the application is made. In the event a man is seeking to establish parentage of a child who is the subject of a pending adoption petition, however, the complaint to establish parentage must be filed in the court where the adoption petition is filed. If a complaint to establish parentage is filed in a different Tennessee court than the Tennessee court hearing the adoption petition, the complaint to establish parentage will likely be transferred to the court hearing the adoption proceedings.

In Tennessee, an action to establish the parentage of a child may be instituted before or after the birth of the child and until three (3) years beyond the child’s age of majority.

Once a man has been legally established as the father of a child under Tennessee law, he can then request that the Tennessee court establish a parenting plan or other order of custody granting him regular parenting time with his child. Contested custody proceedings can often last for several months or even years, but a temporary parenting plan may be established during the pendency of the custody proceedings until the trial occurs (at which time the court will generally enter a more permanent order of custody).

Navigating the legal process to establish paternity and obtain an order of custody can be very complicated and difficult to accomplish alone, and it is not advisable to attempt this process without legal counsel. In addition, the outcome of custody proceedings will often have a profound impact on the lives of the child(ren) involved as well as the parents.

If you or a loved one thinks that it is necessary to take legal action to establish paternity and secure parental rights, you should seek the legal advice of a knowledgeable and experienced family law attorney right away. Contact a Cole Law Group Nashville attorney that focuses on paternity and child custody at 615-490-6020 to schedule a consultation and learn how Tennessee law surrounding paternity and custody may impact you.