Can an Unmarried Presumed Father Get Custody in Tennessee?
In Tennessee, a man named on the birth certificate is presumed to be the father. While the courts will assume the mother should have custody when the parents are unmarried and there is no custody order, it is possible for a presumed father to file an action for custody. It may be necessary to prove the mother is an unfit parent to overcome the presumption that custody belongs with the mother. It will be a matter of subjective determination for the court, based on all the facts and circumstances involved. The overall consideration for the court is the best interests of the child. I suggest you consult a local attorney who can review all the facts and circumstances involved.
Please see the following TN statutes:
36-2-303. Custody absent an order of custody.
Absent an order of custody to the contrary, custody of a child born out
of wedlock is with the mother.
36-2-304. Presumption of parentage.
(a) A man is rebuttably presumed to be the father of a child if:
(1) 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;
(2) 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 and voidable;
(3) After the child's birth, the man and the mother have married or
attempted to marry each other in compliance with the law although such
marriage is or could be declared illegal, void, or voidable; and:
(A) 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 § 36-2-318; or
(B) The man has consented in writing to be named the child's father on
the birth certificate; or
(C) The man is obligated to support the child under a written voluntary
promise or by court order;
(4) 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 the man's
natural child; or
(5) Genetic tests have been administered as provided in § 24-7-112, an
exclusion has not occurred, and the test results show a statistical
probability of parentage of ninety-five percent (95%) or greater.
(b)(1) Except as provided in subdivision (b)(2), a presumption under
subsection (a) may be rebutted in an appropriate action.
(2)(A) If the mother was legally married and living with her husband at
the time of conception and has remained together with that husband
through the date a petition to establish parentage is filed and both the
mother and the mother's husband file a sworn answer stating that the
husband is the father of the child, any action seeking to establish
parentage must be brought within twelve (12) months of the birth of the
child. In the event that an action is dismissed based upon the filing of
such a sworn answer, the husband and wife who filed such sworn answer
shall be estopped to deny paternity in any future action.
(B) A petition to establish parentage may be brought under this part if
a dismissal of a petition under the prior legitimization statutes was
based upon the mother's marriage to another man at the time of conception
or upon the petitioner's lack of standing. In such cases, the
requirements of subdivision (b)(2)(A) requiring a petition to be filed
within twelve (12) months of the birth of the child shall not apply. It
is the intent of the general assembly that putative fathers who filed a
cause of action under this chapter prior to the July 1, 1997, effective
date of Acts 1997, ch. 477, and whose action was so dismissed, shall have
an opportunity to prosecute a single cause of action under this
part. Thus, the doctrines of res judicata and collateral estoppel shall not bar
such new or pending action, nor shall any statute of limitation that may
have run bar such new or pending action. It is the clear and unequivocal
intent of the general assembly that this provision shall be applied
retroactively to such petitions to establish parentage. No such
retroactive application shall, however, abrogate the provisions of
(3) The standard of proof in an action to rebut paternity shall be by
preponderance of the evidence.
(4) In any case, except terminations of parental rights or adoptions
under title 36 or title 37, in which the paternity of a child is at issue
and an agreed order or divorce decree has been entered finding that an
individual is not the parent of the child, the finding shall not be
entitled to preclusive effect unless the finding was based upon
scientific tests to determine parentage that excluded the individual from
parentage of the child in question.
(c) All prior presumptions of parentage established by the previous
paternity and legitimation statutes and cases are abolished.