Articles Tagged with parentage

iStock-1033856542-300x200A person may rescind a Texas acknowledgement of paternity no later than 60 days after its effective date, or earlier if a court proceeding on an issue relating to the child is initiated.  Once this time passes, the party may challenge the acknowledgement only on the basis of fraud, duress, or material mistake of fact. Tex. Fam. Code § 160.307. Under current law, a proceeding challenging the acknowledgment may be commenced any time before an order affecting the child is issued. Tex. Fam. Code § 160.308. That statute was amended in 2011, however.  Suits challenging acknowledgements signed before September 1, 2011 must be filed within four years of the date the acknowledgement was filed with the state.

In a recent case, a man, identified in the appeals court’s opinion by the pseudonym “William,” attempted to challenge an Acknowledgement of Paternity he had signed and filed in 2005. William petitioned the trial court to set aside the acknowledgment in September 2019 “on the basis of fraud, duress, or material mistake of fact.”  He did not, however, make specific allegations.  The mother argued the petition was time-barred.

Only William testified at the trial.  The mother did not appear or participate.  The trial court found the petition was untimely and denied it.

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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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Can a married couple get divorced in Texas while the wife is pregnant?

It is highly unlikely.

Most Texas courts will not grant a divorce to a married couple if the wife is pregnant. Instead, the couple will have to wait until after the baby is born to finalize their divorce, oftentimes causing significant delays to the already lengthy divorce process. This is the case even if the husband and wife both want the divorce and are in agreement on all issues.

A Court in Houston recently reinforced the importance of honesty and full disclosure during the Collaborative Law process when it found that a husband potentially committed fraud by failing to disclose changing job circumstances. See Rawls v. Rawls, 2015 WL 5076283 (Tex. App.–Houston [1st Dist.] 2015, no pet.).

A husband and wife in Houston chose to use Collaborative Law to complete their divorce proceedings in 2014. They successfully reached a settlement that included provisions for the wife to receive portions of her husband’s bonus over the next few years. Unfortunately, before the settlement agreement was signed, the husband received a job offer, which he failed to disclose to his wife, and he resigned from his job. Full and complete disclosures of such information is a critical part of the Collaborative Law process, because the goal is to make both parties feel safe to make informed decisions.  The Houston Court is currently examining whether the husband committed fraud and breached a fiduciary duty under the Collaborative Law agreement he signed by concealing his job change from his former spouse during the collaborative law process.  Continue Reading ›

This past summer, the United States Supreme Court issued its landmark decision in Obergefell v. Hodges, which held that under the U.S. Constitution, no state may forbid same-sex couples from marrying and that no state may refuse to accept the legality of same-sex marriages performed elsewhere.  This Supreme Court opinion, however, did not address issues regarding children of same-sex marriages/partnerships.  As evidenced below, much work still remains to be done in this regard. Continue Reading ›

If you have ever wondered how paternity is established under Texas law, here are a few key points to remember.  First, there are five ways in which a father-child relationship can be established:

  • (1) an unrebutted presumption of the man’s paternity;
  • (2) an acknowledgment of paternity;
  • (3) an adjudication of paternity;
  • (4) adoption; and
  • (5) the man consents to assisted reproduction by his wife resulting in the birth of the child.

Now, what does it take to be considered a “presumed father” under Texas law, and how can that presumption be rebutted?  Well, a man is presumed to be the father of a child if: Continue Reading ›

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