Paternity

Jan
19

Texas Fathers Rights to Establish Paternity of Children Born Out of Wedlock

In the State of Texas there is one birth statistic that continues to rise: The Birth of Out of Wedlock Children! With dropping marriage rates and increasing non-married couples living together, the percentage of children being born out of wedlock is growing yearly. The Texas Out of Wedlock Childbirth rate of 2019 stands at 41.4%. How are the fathers of these children treated? Does a father have any rights to their children? In most states, the mother of a child has 100% of the custody rights until the paternity of the father is legally established.  How does a Texas father legally establish paternity when the mother of their child refuses to allow him to sign the birth certificate and tells him that he will never have any type of communication or relationship with his child?

What are a father’s rights in the State of Texas? 
Any and every right a parent may have is available to a father who seeks them.


How does the father file for paternity of the child in Texas?

1. Paternity Registry (Family Code 160.401-2)

The Texas Paternity Registry was created in 1997 to aid men (potential fathers) who desired to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered. They may register with the Registry of Paternity. The purpose of the Registry of Paternity is to “protect the parental rights of fathers who affirmatively assume responsibility for their children by registering or acknowledging their children (FC Chapter160, Subchapter E). To sign up with the Registry, the father or suspected father must file a Notice of Intent to Claim Paternity before a child is born or within 31 days of the child’s birth. (see form) https://www.dshs.texas.gov/vs/field/docs/vs130(2).pdf 

Many men use this Registry when a Father and Mother do not have a continuing relationship and the man is not listed as the presumed father on the birth certificate or Acknowledgement of Paternity. 
Other Examples: 

  • Man and woman have a consensual sexual relationship for a brief time and no further contact. Man wants to make sure that if woman becomes pregnant and has a child, he wishes to assert his paternity
  • Man and woman do no agree he is the father of the child. Man wishes to assert paternity.
  • More than one man claims to be the father of the child. Each man would complete a separate Notice of Intent to Claim Paternity. 
  • Mother refuses to complete and sign the Acknowledgment of Paternity form. 

The notice of Intent Claim Paternity form will not legally establish paternity nor be used to add a man’s name to the child’s birth certificate. 


2. Alternate Means to Establish Paternity (Family Code 160.301-2 and 160.402, 160.601)

The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man’s paternity.  
An acknowledgment of the paternity must:

  • Be in a record
  • Be signed or otherwise authenticated by the mother and the man seeking to establish paternity
  • State that the child whose paternity is being acknowledged:
    1. Does not have a presumed father or has a presumed father whose full name is stated
    2. Does not have another acknowledged or adjudicated father
  • State whether there has been genetic testing and that the acknowledging man’s claim of paternity is consistent with the results of the testing
  • State that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after 4 year.

A man is entitled to notice of a proceeding regardless of whether he registers with the registry of paternity if:

  • A father-child relationship between the man and the child has been established under this chapter or another law.
  • The man commences a proceeding to adjudicate his paternity before the court has terminated his parental rights.

The parentage of a child may be adjudicated in a civil proceeding by voluntary legitimation.

A Father should be proactive and enforce his rights promptly to enhance his probability of fair and equal treatment that is binding under the law!

Nacol Law Firm P.C
Walnut Glen Building
4188 Walnut Hill Lane #1190
Dallas, Texas 75231
tel: (972) 690-3333
 

By Nacol Law Firm P.C. | Paternity
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Feb
28

Fathers Rights and Legal Presumptions of Fatherhood in Texas

The presumption of fatherhood in Texas is strong, and positively impacts a father’s claims upon his children. Without the presumption of fatherhood, a father would face significant barriers in asserting his rights. The presumption of fatherhood supports access, rights, and duties, allowing the father to assert his right to help raise his child as he deems fit.

The presumption of fatherhood is determined in the Texas Family Code 160.204 and states that a man is presumed to be the father of a child regardless of genetic testing in the following circumstances:

  1. If the man is married to the mother and the child is born during the marriage;
  2. If the child is born before the 301st day after the day the marriage is terminated by death, annulment, invalidity, or divorce;
  3. If the man is married to the mother before the  birth of the child in apparent compliance with the law;
  4. If the man married the mother after the birth of the child in apparent compliance with the law and voluntarily asserted his paternity of the child by:

a. The assertion in a record filed with the vital statistics unit
b. The man is voluntarily named as the Child’s father on the child’s birth certificate or
c. He promised in a record to support the child as his own occurrence

    5. The man during the first two years of the child’s life resided in the household in which the child lived and the man represented to others, (held out) that the child was his own.

These five factual series support the presumption of a father without actually filing a Suit Affecting Parent Child Relationship.

Only the 5th element pertains to men that are not married to the mother of the child. A man that is not married most likely will not legally be presumed the father even if the child is the man’s genetic son or daughter. This is a shock to many men if the relationship between the mother deteriorates and the mother decides to leave town. The father of the child will have no enforceable rights to his genetic son or daughter absent the filing a suit to establish the paternity of the father.

If a father is not married to the mother of his child, then the only option to the father is that he must continuously live with the mother and his child for the first 2 years of the child’s life and hold out to the public that the child is his own. This usually does not happen because of the stress involved in the beginning stages of raising a child and other factors. The father may have an active role in his child’s life but if he does not live with his child continuously for the first 2 years of his child’s life, then the mother may take exclusive possession of his child and move anywhere in the U.S. and the father will have no way to stop her unless he petitions the court for emergency relief, which will likely result in genetic testing.

If you have fathered a child out of wedlock and have not continuously lived with your child for the first 2 years of the child’s life, then it is wise to secure a genetic test and file suit to adjudicate yourself as the father of your child so you may receive the rights of a parent as a matter of law. It is prudent to contact an experienced family law attorney for the process because the innate right to see, guide, and teach your child is too important to forfeit. A man never knows what the future holds in a relationship, and if you have a child out of wedlock it is important to protect your right to be a part of that child’s life. To do this seek an experienced attorney to ensure your right is not infringed or sabotaged.

By Nacol Law Firm P.C. | Parental Rights . Paternity
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Mar
23

Paternity in Texas – Is a Biological Father a Legal Father ?

A baby born to unwed parents does not have a legal father under Texas Law.  In order to exercise your rights as a father, including visitation and possession, a man must be a child’s legal father.  A common misconception is that if your name is on the birth certificate you are a legal father.  If you are not married to the mother, simply putting your name on the birth certificate of your child is not enough to make you the “legal” father and you cannot enforce your rights to the child.

The process to become a legal father is a simple one. If the biological father and the mother agree, they can both sign an “Acknowledgement of Paternity” which is filed with the Bureau of Vital Statistics.  Once paternity has been established, your name will be placed on the birth certificate, and the Court may order you to pay child support and grant you visitation or possession rights with your child.

TEXAS FAMILY LAW §160.301.   ACKNOWLEDGEMENT OF PATERNITY

The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgement of paternity with the intent to establish the man’s paternity.

TEXAS FAMILY LAW §160.302.   EXECUTION OF ACKNOWLEDGEMENT OF PATERNITY

An acknowledgement of paternity must:

  1. Be in a record;

  2. Be signed, or otherwise authenticated, under penalty of perjury by the mother and the man seeking to establish paternity;

  3. State that the child whose paternity is being acknowledged:

    1. Does not have a presumed father or has a presumed father whose full name is stated;

    2. Does not have another acknowledged or adjudicated father.

  4. State whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing;

  5. State that the signatories understand that the acknowledgement is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgement is permitted only under limited circumstances.

An acknowledgement of paternity is void if it:

  1. States that another man is a presumed father of the child, unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the bureau of vital statistics;

  2. States that another man is an acknowledged or adjudicated father of the child; or

  3. Falsely denies the existence of a presumed, acknowledged, or adjudicated father of the child.

  4. A presumed father may sign or otherwise authenticate an acknowledgement of paternity.
By Nacol Law Firm P.C. | Paternity
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Fathers Have Rights – Establishing Paternity

Paternity is defined as the quality or state of being a father.  Many issues arise in the face of a father being denied access to his child or wondering if he is truly the child’s father.  Where paternity of a child is in question, a mother or alleged father may ask the court to determine paternity of one or several possible fathers. 

Most paternity actions involve a child born out of wedlock.  However, paternity actions also occur between married persons where someone other than the husband is the father of the child, or where the husband has fathered a child outside of the marriage.  There is a presumption that a child born to a married woman is the child of the husband.  However, this presumption can be overcome by DNA or other valid evidence. 

If you are questioning paternity, think about when the child could have been conceived.  Consider when you had relevant or timely intercourse.  Understand that paternity is determined by testing DNA from the father and the mother through the use of genetic fingerprinting.  DNA testing is done by drawing blood or by taking a buccal swab, when cells are wiped from the inside of the mouth with a cotton swab.  These tests can determine the father of a child with up to 99% accuracy.  DNA testing is currently the most advanced and accurate technology to determine parentage.  Generally paternity testing is paid for by the father.

If you file a paternity suit, you can request the court order DNA testing.  A court may order the mother, father and the child to submit to testing.  Paternity testing can be done during pregnancy or when the child is as young as one day old. 

Paternity proceedings can be filed by the alleged father, mother, child or child support division of a state.  A private action for paternity is usually prosecuted to secure child support payments from the father, parenting time with the child, and/or fair rights and privilege allocation. 

Some men are confident that they are the biological father and wish to maintain a legal relationship with the child whether or not they are the father and thus either initiate paternity actions or consent to the entry of a paternity order.  The paternity order entitles the father to visitation time with the child and creates a legal duty for the father to provide for the support of the child in addition to awarding him rights and privileges regarding the child’s future development.

When you consent to the entry of a paternity order, absent fraud, you consent for life.  Most jurisdictions will not allow you to escape the consequences of that order, including the requirement of payment for the support of the child.  If there is a chance that you will resent the child, or wish to break off the relationship with the child or, if you ultimately learn that you are not the child’s biological father, make certain you obtain a DNA test before legally admitting and therefore confirming that you are a child’s father. 

Custody of a child can either be awarded to the father or the mother in a paternity action depending on the facts.  Child support in a paternity action is generally set according to state law standards unless the parties sign an agreement providing for the payment of child support that is approved by the court. 

Reasons to establish paternity:  to provide the child with a needed identity; to confirm rights, privileges and duties of a parent; to know the health history of both the mother and father for medical care and treatment of a child; establish financial support for the child; establish health insurance coverage, social security eligibility, inheritance and other benefits; and seek public assistance where qualified.

By Nacol Law Firm P.C. | Paternity
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Paternity Defined – Texas Family Code

Under the Texas Family Code (Tex. Fam. Code) a “Parent” is defined as the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who acknowledged his paternity under applicable law, or an adoptive mother or father. 

The father-child relationship is established between a man and a child by:

  1. an unrebutted presumption of the man’s paternity of the child under Section 160.204;
  2. an effective acknowledgment of paternity by the man under Subchapter D, unless the acknowledgment has been rescinded or successfully challenged;
  3. an adjudication of the man’s paternity;
  4. the adoption of the child by the man; or
  5. the man’s consenting to assisted reproduction by his wife under Subchapter H, which resulted in the birth of a child.

Tex. Fam. Code Sec. 160, otherwise known as the Uniform Parentage Act, states that a man is presumed to be the father of a child if:

  1. he is married to the mother of the child and the child is born during the marriage;
  2. he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
  3. he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
  4. he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:
    a)     the assertion is in a record filed with the bureau of vital statistics;
    b)    he is voluntarily named as the child’s father; or
    c)     he promised in a record to support the child as his own; or
  5. during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

A presumption of paternity established under this section may be rebutted only by:

  1. an adjudication under Subchapter G; or
  2. the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity.

A presumed father of a child may sign a denial of paternity.  However, the denial is valid only if:

  1. an acknowledgment of paternity signed or otherwise authenticated by another man is filed under Section 160.305 of the Texas Family Code;
  2. the denial is in a record and is signed or otherwise authenticated under penalty of perjury; and
  3. the presumed father has not previously:
    a)     acknowledged paternity of the child, unless the previous acknowledgment has been rescinded under Section 160.307 of the Texas Family Code or successfully challenged under Section 160.308 of the Texas Family Code; or
    b)    been adjudicated to be the father of the child.

The rules for adjudication of paternity are as follows: 

  1. The paternity of a child having a presumed, acknowledged, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.
  2. Unless the results of genetic testing are admitted to rebut other results of genetic testing, the man identified as the father of a child under section 160.505 shall be adjudicated as being the father of the child. 
  3. Unless the results of genetic testing are admitted to rebut other results of genetic testing, the a man excluded as the father of a child by genetic testing shall be adjudicated as not being the father of the child. 
  4. If the court finds that genetic testing under Section 160.505 does not identify or exclude a man as the father of a child, the court may not dismiss the proceeding.  In that event, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity.

Under Tex. Fam. Code Sec. 160.608, if there is an established relationship between the presumed father and the child, the court may deny genetic testing and adjudicate the presumed father as the father of the child. 

In In re Shockley, 123 S.W.3d 642, 652-53 (Tex. App.–El Paso 2003, no pet.) the court ruled a mother was equitably estopped from litigating a child’s parentage due to the fact that she refused to consent to DNA testing in prior years and brought suit for parentage more than four years after the birth of a child to question the parentage of the father.  The mother then consented to DNA testing that showed another man to be the father of the child, but the court refused to recognize the DNA tests and her claim was barred.

By Nacol Law Firm P.C. | Paternity
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Please contact father’s rights Dallas Attorney Mark Nacol, or father’s rights Dallas Attorney Julian Nacol with the Nacol Law Firm P.C., for legal insight to your rights as a father. Both attorney Mark Nacol, and attorney Julian Nacol , provide counsel in the area of family law including divorce, father’s rights, interstate jurisdiction, child support, child custody, visitation, paternity, parent alienation, modifications, property division, asset division and more. Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Our attorneys at The Nacol Law Firm P.C. serve clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Prosper, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.

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