Parental Presumption

Texas Father Did Not Voluntarily Relinquish Child to Grandmother Before Parental Adjudication

Published on: July 21, 2024 | by Kelly McClure

Parents generally have a fundamental right to make decisions regarding their children. In Texas, there is presumption that being raised by the parents is in the child’s best interest. This presumption can be rebutted if the court finds appointment of a nonparent is in the child’s best interest and the parent “voluntarily relinquished actual care, control, and possession of the child to a nonparent . . .” for at least a year, with part of that time being within 90 days before the date suit was filed. Tex. Fam. Code 153.373. A grandmother recently appealed a directed verdict in favor of the child’s father in a Texas custody case, arguing he had voluntarily relinquished care, control, and possession of the child to her.

According to the opinion of the appeals court, the child lived with his maternal grandmother after the mother’s death in 2019. The father initially petitioned to adjudicate parentage in April 2021, requesting genetic testing and to be named the child’s sole managing conservator. The grandmother asked for both parties to be joint managing conservators, with her having the exclusive right to designate the child’s primary residence.

The parties signed a Mediated Settlement Agreement for temporary orders (“MSA”) that provided the father was adjudicated the child’s father based on genetic testing and the father would have possession of the child on mutual agreement of the parties, or set periods if the parties did not agree. The court signed the agreed temporary orders.

Fit Parent Presumption in Texas Custody Modification Proceedings

Published on: May 10, 2023 | by Kelly McClure

iStock-170042608-300x200 There is a presumption under Texas family law that it is in the child’s best interest to be raised by their parents. Additionally, the U.S. Supreme Court has held that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. Courts generally cannot interfere with these fundamental rights of a fit parent. The fit parent presumption makes it difficult for a nonparent to obtain custody over a fit parent.

A mother recently challenged a judgment naming the children’s paternal aunt and uncle their managing conservators.

Jury Trial

According to the appeals court’s opinion, a mediated settlement agreement named both parents joint managing conservators of their children, with the father having the right to designate the primary residence. He designated his brother’s home as their primary residence, and his brother and sister-in-law assumed his parenting responsibilities.

Texas Court Finds Alleged Father Time-Barred From Adjudicating Paternity

Published on: May 3, 2022 | by Francesca Blackard

iStock-1033856542-300x200 Under Texas family law, a mother’s husband is presumed to be the father of a child born during the marriage. This presumption can be rebutted by an adjudication of parentage or by a valid denial of paternity filed by the presumed father along with a valid acknowledgement of paternity filed by another person. Tex. Fam. Code § 160.204. If a child has a presumed father, a suit to adjudicate the child’s parentage may not be brought after the child’s fourth birthday unless an exception applies. Tex. Fam. Code § 160.607.

Presumed Father Challenges Paternity Adjudication

A presumed father recently challenged a court’s adjudication that another man was the child’s father, arguing the suit was time-barred. The child was born in May 2014. The mother and her husband separated that October. The mother began cohabiting with the alleged father the following October. The mother and her husband divorced in August 2016. The divorce order provided for visitation by the husband of all four children born during the marriage.

The mother and alleged father got married. The alleged father petitioned for adjudication of parentage after a DNA test showed a 99.96% probability he was Lucy’s biological father. The mother’s ex-husband conceded that the alleged father was likely the child’s biological father based on the DNA test. He argued, however, that the alleged father was time-barred from seeking adjudication of parentage.

Genetic Testing of Presumed Father in Texas Paternity Case

Published on: June 24, 2021 | by McClure Law Group

iStock-1033856542 Texas family law presumes a man is the father of a child in certain circumstances, including when he is married to the child’s mother at the time of the birth or when he continuously resides with the child for the first two years of the child’s life and holds himself out to others as the child’s father. Tex. Fam. Code § 160.204. A Texas trial court must generally order genetic testing to determine parentage if one of the parties requests it, but that is not the case if there is a presumed father. Tex. Fam. Code § 160.502. When there is a presumed father, the court may deny the request for genetic testing if the conduct of the requesting party estops them from denying parentage and it would be inequitable to disprove the presumed father’s parentage. In deciding whether to deny a request for genetic testing, the court must consider the child’s best interests, including certain enumerated factors. Tex. Fam. Code § 160.608

A man recently challenged a court’s order for genetic testing and subsequent adjudication that he was not the child’s father. The child was born while the appellant was in a relationship with the child’s mother. According to the appeals court’s opinion, the appellant was aware he was not the child’s biological father but agreed to be listed as the father on the birth certificate. The appellant and the mother broke up, but the appellant continued to see the child nearly every day. The mother subsequently denied him access to the child after they were unable to reach a child-support agreement.

Man Petitions to Adjudicate Paternity

The appellant petitioned to be named a joint managing conservator of the child in 2016. The trial court ordered genetic testing. When the results showed the appellant was not the child’s biological father, the trial court adjudicated him not to be the child’s father. The appellant then appealed and asked the appeals court to name him joint managing conservator.

Texas Parental Presumption and Joint Managing Conservatorship

Published on: February 28, 2021 | by McClure Law Group

There is a strong presumption in Texas family law that it is in the child’s best interest for a parent to be awarded custody over a non-parent. In a recent case, a father appealed a judgment naming him joint managing conservator with the child’s maternal grandmother. A central issue in the case was the father’s argument that he should have been appointed the child’s sole managing conservator based upon the parental presumption.

Texas Court Should Have Applied Parental Presumption Even When Parent Lived Outside U.S.

Published on: January 10, 2021 | by McClure Law Group

iStock-1183307633 Texas family law has a strong presumption that it is in the child’s best interest to give custody to a parent. Generally, the court must appoint sole managing conservatorship to the parent instead of a non-parent unless it finds doing so would not be in the child’s best interest due to significant impairment of the child’s emotional development or physical health. Tex. Fam. Code § 153.131(a). What if the parent lives in another country? A Texas appeals court recently considered this issue.