Legal Services At The Intersection Of Business And Life

  1. Home
  2.  → 
  3. Child Custody
  4.  → Who Has Custody of a Child If There Is No Court Order?

Who Has Custody of a Child If There Is No Court Order?

On Behalf of | Apr 11, 2023 | Child Custody

When parents are unmarried or in the process of separating, it raises many questions, such as, Who has custody of a child if there is no court order? In Tennessee, the default rule is that both parents have custody if the child is born during the marriage. But if the child is born out of wedlock, Tennessee law automatically awards custody to the mother unless parentage has been established and there is a child custody order.

Batson Nolan PLC understands that divorce, separation, and child custody issues can be highly charged. Our team has decades of experience helping families effectively and successfully resolve even the most contentious child custody issues. We understand that your priorities are protecting your child and asserting your rights as a parent, and we stand ready to help you accomplish these goals.

Who Has Custody of a Child If There Is No Court Order?

Under Tennessee’s default custody laws, who has custody depends on whether the parents were married at the time of the child’s birth. The law presumes the mother to be the child’s biological mother so long as her name is on a legal birth certificate proving she gave birth to the child. The law does not presume that the father is the biological dad unless the parties were married when the child was born or the father has established paternity.

If the Parents Are Not Married When the Child Is Born

If the parents are not married when the child is born (and there is no child custody order to the contrary), Tennessee law automatically grants the mother custody of the child. On the other hand, the father must establish paternity to prove he is the biological father and gain child custody rights. Once the father proves paternity, he must assert his rights by filing an appropriate legal action to obtain child custody or visitation rights.

If the Parents Were Married When the Child Was Born

Under Tennessee law, both parents are presumed to be the biological parents of a child born by the wife during the marriage. In that case, both parents typically have equal rights in terms of custody and visitation. There may be an exception in cases where abuse or neglect is present. Before denying a spouse access to the children, it is a good idea to talk to an attorney to understand and assert your rights.

What Are the Steps for Establishing Paternity in Tennessee?

Establishing paternity is an integral part of asserting your rights and pursuing custody of your children. Tennessee law describes several ways for someone to prove that they are the father of a child, including:

  • Showing that the child was born during the marriage or that the parties attempted to legally marry each other before the child’s birth;
  • The child lives with the man, and he tells others that he is the father of the child and treats the child like his own; and
  • A genetic test shows with 95% certainty that the man is the child’s natural father.

The man may also establish that he is the father by showing that the parties attempted to marry each other after the child’s birth and that at least one of the following is true:

  • The father agreed to put his name down as the father on the birth certificate;
  • The father is registered as the putative father on the child and family services registry; or
  • The father promised to pay child support under a court order or voluntary agreement.

If the child’s mother protests whether the father is the child’s biological father, the father can file a paternity action to prove that he is the child’s dad. During this lawsuit, the father most likely must undergo voluntary or involuntary genetic testing.

How Does the Court Determine Child Custody in Tennessee?

The Tennessee courts employ a multi-factor test when deciding how to award child custody in a divorce or paternity action. Under this test, the courts look at the following:

  • The child’s relationship with each parent,
  • Which parent has performed the majority of the caregiving responsibilities during the child’s life,
  • The likelihood that the parent will respect the rights of the other parent and follow the court’s child custody order;
  • The level of commitment the parent has to fostering a positive relationship with the child and both parents,
  • Whether the parent refused to attend or cooperate during the child custody proceedings,
  • The child’s age and maturity level,
  • The developmental needs of the child,
  • The ability of each parent to effectively parent the child, and
  • Evidence (or absence) of abuse or neglect in either of the parent’s homes.

The court also considers the potential impact it would have on the child if they were separated from the other parent. Likewise, the court considers the circumstances at play in each home. This includes the presence or absence of paramours, friends, or family members of the parent and whether this might positively or negatively impact the child’s upbringing and well-being.

Contact Our Lawyers at Batson Nolan PLC

Child custody issues can be quite difficult for people to manage on their own. Our team is here to help alleviate your concerns and determine a solution that works for you and your child. Christina Bartee, who heads our Springfield office, appreciates the opportunity to help clients navigate and resolve complex and challenging life decisions, such as those involving child custody arrangements.

Contact our team today to schedule a consultation if you have legal questions about child custody and parentage in Tennessee.