Articles Tagged with Paternity

While ideally a child’s parentage is determined when they are young, that does not always occur.  A Texas appeals court recently considered whether the trial court could adjudicate the parentage of an adult petitioner after the death of the putative father.

Adult Child Files Paternity Suit Against Father’s Estate

An adult petitioner filed suit against his mother, his alleged father, and the independent executor of his alleged father’s estate, seeking adjudication of his parentage and a declaration that he was the alleged father’s biological son and had the rights and privileges of a surviving child.  The executor filed a motion to dismiss, arguing a suit to adjudicate parentage cannot be brought after the putative father’s death.  The trial court denied both the executor’s and the petitioner’s respective motions for summary judgment.

Trial Court Adjudicates Parentage

At trial, the executor moved for judgment, arguing that suits to adjudicate parentage do not survive the putative father’s death pursuant to the Texas Family Code.  The trial court denied the motion and adjudicated the putative father as the petitioner’s father.

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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-839381426-300x200Texas family law includes a rebuttable presumption that appointing both parents as joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. The presumption can be rebutted upon a finding of a history of family violence.  A mother recently challenged a trial court’s order, arguing in part that the court failed to properly apply the presumption.

Paternity Suit Filed

The parents were not married when the child was born, but lived together until the father was deployed a few months later. The father did not move back in when he returned from his deployment.

The Office of the attorney general petitioned to establish the relationship between the father and the child.  The father was adjudicated to be the father and was given the exclusive right to designate the child’s primary residence with a geographic restriction in a temporary order.  The mother was given a standard possession order and required to pay child support.

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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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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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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.

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