Paternity/Legitimization For Unmarried People With Children.

Society and the courts have had to deal with the ever growing reality of who is to take care of children who are not in a “traditional” marriage.

One example of a non-traditional method of raising children is the ever-increasing number of those born to a mother who is not married to the father.

In the 1960’s, the number of children born out of wedlock was roughly 7% in the United States.

In 2014, that percentage increased to about 40%.

These relationships can range from being stable and long-lasting, just not within the confines of marriage, to brief sexual encounters that result in the mother getting pregnant but having little or no support from the father.

Alternatively, the father desperately wants to raise his child but the mother wants nothing to do with him except to collect child support.

Paternity and legitimization

Children born out of wedlock lead to various legal issues.

The cases that I’ve seen include:

  1. Establishing paternity
  2. Payment or collection of child support
  3. Establishing visitation


A very common case is where a young man comes to me after a young woman with whom he had sex gives birth.

He wants a relationship with his newborn child, but the mother wants nothing to do with him.

What to do?

Well, there are three components that must be put together:

  1. Establishing paternity
  2. Calculating child support
  3. Protecting visitation rights with a parenting plan


I like to compare these components to the legs of a three-legged stool.

Each leg is separate, but all of the legs work together to support the stool, and if one or two of the legs are taken away, the stool will collapse entirely.

Similarly, all three of these elements work together to protect your rights as a parent, whether you are a father seeking visitation rights or a mother establishing child support payments.

Below we discuss everything you need to know about paternity, child support, and visitation rights in Tennessee, to ensure that your rights to your child are protected no matter what the future may bring.

1. Paternity

What is paternity?

establishing paternity

In the world of family law, paternity is “the legal establishment of the identity of a child’s father.”

When married couples have a baby, it is assumed that the husband is the father of the child.

However, when unmarried couples have a baby, paternity is not assumed, and even though you may be the biological father of the child, this does not make you the legal father.

The importance of establishing paternity

You may not think it matters in your situation, but establishing a legal father is in the best interest of all parties involved, including the mother, child, and father.

Below are a few reasons why establishing paternity is so important.

  1. It allows both parents to share the legal, financial, and emotional responsibilities of parenthood
  2. It protects the father’s rights to custody and visitation (more on this below)
  3. It will ensure your child is eligible to receive child support
  4. It ensures your child will have access to their father’s benefits, such as life insurance, social security, and health insurance
  5. It will give your child the emotional security of knowing who their father is
  6. It can also allow you and your child to be aware of any genetic medical issues potentially passed down from the father

How to establish paternity

Paternity can be established either voluntarily or involuntarily and does not have to be done at the time of birth.

Establishing paternity voluntarily

Paternity can be voluntarily established in two main ways depending on your specific circumstances.

  1. If the father is present when the child is born, he can sign an acknowledgment of paternity, also known as a declaration of paternity.
  2. In situations where the father is not present for the birth of the child, a legal father can still be established by filing a voluntary acknowledgment of paternity signed by both parents.This can be done any time from the moment the child is born until their 18th birthday.If the father is not present at the birth and the mother wants to include his name on the birth certificate, they can have it amended after this document has been filed.

Establishing paternity involuntarily

If the father of the child will not voluntarily acknowledge paternity, it can be established involuntarily.

For this to happen either the mother or the state will file a paternity lawsuit against the father.

This will require the father to show up in court and potentially participate in DNA testing.

Once the court has established paternity, an order will be entered establishing paternity and requiring the payment of child support.

2. Child support

In the state of Tennessee, child support cannot be calculated until paternity has been legally established.

However, once the legal father is determined by the court, child support can be easily calculated using Tennessee’s Child Support Calculator & Worksheet.

This worksheet determines the amount of child support owed based on two main factors:

  1. The gross income of each party
  2. The number of days of visitation that each parent has


It is important to keep in mind that the number of visitation days noted on the worksheet is only used for calculation purposes and does not establish visitation rights for the father.

In addition to gross income and the number of visitation days, the amount of child support owed can be modified based on the amount being paid for health insurance by either party as well as the amount being paid for daycare by either party.

3. Visitation

According to Tennessee Code Annotated Section 36-2-303, “Absent an order of custody to the contrary, custody of a child born out of wedlock is with the mother.”

Many clients that I speak with are surprised to learn that this means without a visitation order from a court, also known as a Parenting Plan, the father of the child has no legal right to see his child or make decisions regarding his child’s life.

It doesn’t matter if paternity has been established or a child support agreement has been reached.

The father has no visitation rights until a parenting plan is in place.

The good news is that in the state of Tennessee there is a very strong presumption that children are better off with two parents who will love, nurture, and provide for them.

Therefore, unless the father is deemed “unfit” by a court, he should be able to gain visitation rights through the proper legal means.

How to establish visitation rights in Tennessee

If you are trying to establish visitation rights, the first step is to establish paternity.

If you have previously signed a voluntary acknowledgment of paternity, you should be able to get a copy of the document from the hospital or vital records.

If you have not been established as the legal father of your child, you will need to petition the court to order a DNA test and establish paternity.

Once paternity has been established, the next step is to submit a Parenting Plan to the court.

If both parties can come to an agreement for a judge’s signature, there is no need to appear in court.

However, if one party contests the plan and an agreement cannot be reached, a court appearance will be necessary to determine visitation rights.

Child support will be set as part of the establishment of visitation.

The importance of establishing visitation rights

Even if you are living with the mother of your child and/or the mother of your child is cooperative regarding visitation, it is important to establish visitation rights with a court since you do not know what might happen in the future and you have no legal right to your child without a parenting plan in place.

Need assistance establishing paternity and visitation right or calculating child support?

Ken Phillips Family Law has deep experience in this highly sensitive area.

We know how to bring all parties to the table to reach an agreement that will benefit everyone involved — most importantly the child.

If you are having issues establishing paternity or visitation rights, or need assistance determining the amount child support owed, contact our experienced team today to see how we can best serve you.

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