Biological Father Ordered to Pay Child Support to Mother’s Ex-Husband in Texas Custody Case

A Texas custody case can become complicated when a person learns he is the biological father of a child years after the child’s birth.  Although a potential father of a child with a presumed father generally must file for adjudication of paternity prior to the child’s fourth birthday, in some cases, a delay may be excused.  TEX. FAM. CODE ANN. § 160.607.  In a suit adjudicating parentage, the court may order retroactive child support based on the child support guidelines if the parent has not been previously ordered to pay child support and was not party to a suit where support was ordered. TEX. FAM. CODE ANN. § 154.009.

In a recent case, a biological father challenged an order requiring him to pay retroactive child support and granting custody to the mother’s ex-husband.  The mother was not sure who the father was, but married during her pregnancy.  The mother and her husband also had a child together.  The husband was the presumptive father and was adjudicated the father of both children when he and the mother divorced.  The husband was named managing conservator with the right to establish the primary residence for both children.

The mother had told the biological father about the pregnancy when she realized she may be pregnant, and he acknowledged he was aware he could be the father from that time.  He went to the hospital the day the child was born.  He said the mother told him he was not the father and he did not pursue paternity at that time.  The mother told him he may be the father when the child was four years old and a paternity test confirmed that he was the probable father.

About eleven months later, the biological father filed a paternity suit.  The court found he was excused from failing to file prior to the child’s fourth birthday.  The child was nine years old by the time the proceedings concluded.  She had been living with her sister and her mother’s ex-husband, who raised her as his daughter, throughout the proceedings.

The trial court adjudicated the appellant as the biological father, and named him a parent possessory conservator.  The court named the mother a parent joint managing conservator and her ex-husband as a nonparent joint managing conservator.  It ordered the biological father to pay retroactive and ongoing child support to the mother’s ex-husband, and ordered the mother to pay partial reimbursement of the current child support to the biological father.  The biological father appealed.

The biological father argued the court abused its discretion in appointing him possessory conservator.  The appeals court pointed out that there was nothing in the record showing he asked to be appointed managing conservator.  His petition asked that he be adjudicated the child’s father and that her last name be changed.  He also asked that the mother be ordered to pay child support.  His attorney indicated he was only asking to be adjudicated as father and given access to the child, not to change the ex-husband’s status as managing conservator.  The appeals court found no abuse of discretion by the court when the biological father had not sought managing conservator status.

The biological father also argued the court erred in awarding retroactive child support.  The trial court found it was reasonable and in the child’s best interest to order child support back to the month the biological father filed his petition.  He argued the Texas Family Code does not contemplate retroactive child support to a non-parent.  The appeals court found, however, that ordering retroactive support to a nonparent is within the trial court’s discretion.

The biological father also argued that the retroactive child support award was unjust because he had been repeatedly told he was not the father and was denied access to the child.  The appeals court pointed out, however, that the retroactive support was ordered only back to the month when he filed his petition, after the paternity test and while he was seeking adjudication he was the father.  The appeals court therefore found the trial court’s order was not manifestly unjust.

The biological father also argued the court erred by not ordering the mother to reimburse a greater amount of the child support.  The appeals court found, however, that the trial court had split the child support almost equally.  The appeals court therefore found no abuse of discretion in the child support awards.

If you are seeking adjudication of paternity, you need an experienced Texas paternity attorney on your side.  As this case shows, it’s important to consider child support, custody, and visitation.  The family law attorneys at McClure law group have the knowledge and experience to help you.  Call us at 214.692.8200 to set up a consultation.


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