Articles Posted in Paternity

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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In a recent Texas paternity decision, the court considered the name change of a minor. The child’s mother and father married in 2012. The mother was a real estate agent and kept using her original last name as her last name during the marriage. She listed her name on real estate signs, on professional documents, and in social situations. However, she listed her husband’s last name as her last name on her driver’s license.

About six months into the marriage, she got pregnant with the couple’s son. The parents separated before the child was born. They testified differently about events that led to their separation, including the birth of their son and the choice of his last name. They testified differently about the father’s reaction to the pregnancy. The father doubted his paternity because he’d gotten a doctor’s opinion that led him to think he couldn’t have biological children. He confronted the mother about the child’s paternity, and she said the child would be of a different race than him.

The mother denied the husband’s claims. She said that they actively tried to get pregnant and that the father was excited about the pregnancy. She said there had never been a conversation about the possibility he wasn’t the child’s biological father. However, as the pregnancy went on, he denied paternity and moved out.

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Many people ask: Can my children decide where they want to live in a divorce? There are many ways for a court to consider children’s input about where they want to live.

The first way is simply allowing children to talk to the judge. Section 153.009 of the Texas Family Code allows a parent to request that a judge interview the child in chambers to determine the child’s wishes regarding certain aspects of custody. If a child is over the age of 12, it is mandatory that the judge interview the child on the request of a parent. A judge may also interview a child under age 12. It is important to know that 12-year old children cannot actually decide where they where they want to live. They will not be providing the “final say.” Instead, the child’s wishes will just be one factor that the Court considers in addition to other important information. Another thing to keep in mind is that this process can be traumatic for children. Sitting in a judge’s chambers can be very intimidating for a child, and a child could be negatively impacted by the pressure of such a weighty decision. However, many times, a child’s input can be very important in a child custody dispute, and so there are other means to obtain the information indirectly.

Another way to get a child’s input in child custody litigation is through a Child Custody Evaluation. In Texas, the only mental health professional that may make recommendations as to possession and conservatorship for children is a child custody evaluator. The Texas Family Code provides very detailed requirements for a child custody evaluation, which includes interviews of each parent and anyone living in a house with the child, interviews of the child, and observations of the home environment and each parent’s interactions with the child. The child custody evaluator will therefore be able to talk to children about where they want to live, and will do so in conjunction with a much broader study into the children’s home environment and what will ultimately be in the best interests of the children.

In re Interest of PS is a Texas case that illustrates the importance of consulting an experienced family law lawyer in connection with any plans for artificial insemination. An appellate court reviewed whether a father qualified as a donor under Texas Family Code section 160.102(6). The case arose out of a friendship between the father and mother, who’d lived together but hadn’t had sex. The mother was a lesbian and wanted to have a child. She asked the father to provide sperm. The father also wanted children but didn’t think he was going to get married and thus agreed. The mother gave him sterile syringes and cups, and he gave her his sperm. The mother artificially inseminated herself and got pregnant.

The father went to the mother’s doctor appointments and a sonogram appointment and even came to the birth. He signed an acknowledgement of paternity as well as the birth certificate. The daughter received his last name. The father saw his daughter up to seven times during her first two months but then lost contact with the mother, who married someone. He came by to visit, but nobody answered the door.

A month after the daughter was born, the mother rescinded the paternity acknowledgement and asked the father to relinquish his parental rights through a form. The father asked for the Office of the Attorney General’s (OAG) help in getting official acknowledgement as the child’s father. The OAG filed a petition to establish their relationship, which the mother and her spouse opposed.

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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.

Surrogacy is the process of a mother carrying a child for a family who can’t conceive. The process can be a godsend for parents who do not have the option of traditional conception. As surrogacy works in Texas, it involves a life-altering event for at least three parties– the intended parents and the gestational mother. Naturally, it is a delicate process with many emotions and moving parts. Surrogacy can be a great option for many reasons- whether the parents are a same-sex couple, medical issues prevent a mother from carrying a baby, or if either parent is concerned about passing down a genetic disorder or defect. For anyone thinking about growing a family through surrogacy, keep in mind that the legal process is just as essential as the biological process. Continue Reading ›

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