Articles Posted in Paternity

iStock-1033856542-300x200Under 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.

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iStock-1033856542-300x200Some families choose to resolve custody manners informally.  When the parties are the biological parents, subsequent disputes can be resolved through a Texas custody case.  When one party is not biological parent, however, resulting disputes may be more complex. In a recent case, a maternal uncle and aunt appealed an order that required them to pay child support for their nephew.

When the child was born, the child’s biological mother asked her brother to act as the child’s father.  The brother signed an acknowledgment of paternity, birth certificate, and a verification of birth facts.  The birth certificate listed the brother’s wife as the mother.  Initially, they all lived together, but the mother moved out following a falling out with the couple.

Mother Files Paternity Suit

In August of 2016, the mother petitioned to adjudicate parentage, asking the court to adjudicate her as the mother and an identified man as the father.  The brother and his wife were named as parties, but they also intervened in the case, asking the court to name them the child’s managing conservators and terminate the mother and alleged father’s parental rights.

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iStock-1033856542Texas 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.

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BSgavelx1200-768x432-1The trial court in a Texas family law case has only a limited ability to change its judgment once its plenary power expires.  Generally, plenary power lasts for thirty days from the date the final judgment is signed, but it may be extended if the court overrules certain motions or modifies the judgment while it still has plenary power.

In a recent case, a mother challenged the court’s authority to reform the judgment.  According to the appeals court’s opinion, she had petitioned for the adjudication of the parentage of her child.  Both the mother and the alleged father sought an order adjudicating him to be the child’s father.

The parties reached a partial agreement and went to trial on the remaining issues.

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iStock-1147846829Sometimes parents disagree about whose surname a child should have.  Texas family law allows a court to order a name change for a child if the change is in the child’s best interest.  Tex. Fam. Code Ann. § 45.004.  Additionally, when a court adjudicates parentage, it may order a name change if a parent requests it and “for good cause shown.”  Tex. Fam. Code Ann. § 160.636.  Some appeals courts have held that those are two distinct tests, while others have held that the child’s best interest is necessarily good cause and simply determine if the change would be in the child’s best interest even when the name change is requested pursuant to § 160.636.

A mother recently appealed a court order changing her son’s surname to that of his father.

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When there is a finding of paternity, a child’s father may move to change the child’s name.  Under Texas family law and the state constitution, both parents are treated equally, however, so a child’s surname will not be changed to that of the father based solely on tradition. The court may only change the child’s name based on “good cause shown” and the best interest of the child.   Some courts consider a showing of the child’s best interest to be sufficient to establish good cause, but other courts require the requesting party to establish both.

In a recent case, the parents agreed on all issues except the child’s name.  According to the court’s opinion, the mother told the father she was pregnant while they were dating.  She broke up with him after he asked her to consider an abortion.  She then got back together with an ex-boyfriend.  She gave the child the boyfriend’s first and last names, but called him by his middle name.  The mother told the father he was actually the child’s father after she broke up with the boyfriend.

The father filed a petition to establish paternity, appoint him managing conservator, and change the child’s name.  The mother asked to be the sole managing conservator and receive child support.

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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.

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Texas family law presumes a husband is the father of his wife’s children born during the marriage. A presumed father may challenge paternity, but he generally must do so by the child’s fourth birthday.  Adjudication of the paternity of a child with a presumed father may occur later, however, if a court finds the presumed father did not live with or have sexual intercourse with the mother when the child was conceived or if misrepresentations led the presumed father to a mistaken belief he was the biological father.  Tex. Fam. Code § 160.607.

A husband recently challenged a trial court order including a child as a child of the marriage after he presented evidence of a DNA test showing he was not the father.  The daughter was born in 2004 and the son in 2012.  In 2013, the husband obtained a paternity test confirming he was not the daughter’s biological father.  He filed for divorce in 2017.  In his petition, he listed both children as “children of the marriage” and sought the right to designate their primary residence.  He sought child support and medical support from the wife for both children.  The wife also sought child support, medical support, and the right to designate primary residence.

Each spouse alleged the other had been unfaithful.  The husband presented the DNA test results to support his allegation.  When his attorney asked if he was asking the court to say that the daughter was not his child, he indicated he was not and agreed he accepted parental responsibility for her.  He indicated the purpose of admitting the paternity test was not to deny paternity, but to show that his wife had been unfaithful.  Both parents testified the girl had not been told she was not the husband’s biological child.

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Courts will not generally grant a Texas divorce during the pregnancy of a spouse.  Courts want to address all of the issues in the final divorce decree, including paternity, custody, and child support, and they cannot do that until the child is born.

Although courts are unlikely to grant the divorce during a pregnancy, that does not mean a spouse should wait until the child is born to file for divorce.  Texas has a waiting period of 60 days, meaning courts cannot issue a final divorce decree until at least 60 days have passed since the case was filed, except in certain cases involving family violence.  The paperwork can be filed and the process initiated during the pregnancy.  The parties can go ahead and start negotiating the terms of the divorce and try to work out any issues on which they agree.  If the parties do not agree on significant issues, the process could take several months and waiting until the child is born to file for divorce will just prolong these delays.

Texas family law has a presumption of paternity, meaning the husband is generally presumed to be the father of a child born during the marriage or within 300 days after the divorce; Texas Family Code §160.204. In some cases, however, the husband may not be the biological father of the child. If the husband is not actually the biological father, the presumption can be rebutted in two ways.  First, the husband can file a valid denial of paternity in conjunction with someone else filing a valid acknowledgement of paternity to establish the other person is the child’s father.  This method requires the husband, the mother, and the other man to all agree that the other man is the child’s father.  Otherwise, the presumption may only be rebutted by an adjudication of paternity.

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Parenting is hard. Those three words are enough to capture the entire outlook of parenthood from the moment that the sweet child enters the world.

In today’s world, parenting has taken on a number of new issues such as parenting after a divorce, as an unmarried couple; single parenting; and co-parenting. Briefly stated, parenting is hard. According to the National Statistics Unit, in 2016 39.8% of births in the U.S. are by unmarried women. It is important that expecting or current modern parents consult with an attorney who can help guide them through the legal processes of ensuring full legal rights to conservatorship, possession of and access to their child and identifying numerous nuances that are becoming more and more prevalent in this modern era.  Parents today face many challenges that older generations never even dreamed about.

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