Now it is time for “fathers” or men who have been paying child support for children who are not their biological children to assert their rights.
Texas new law, Texas SB785, permits men who have been ordered to pay child support, without genetic testing, to request genetic testing in order to determine whether they are the genetic parent of the child.
But the clock is ticking. If you suspect that you are paying child support for a child who is not your biological child, you must file the petition before September 1, 2012.
After September 1, 2012, a man must file a petition to determine genetic parentage no later than the first anniversary of the date on which he becomes aware of facts indicating that he is not the child’s genetic father.
In order to file for relief under this new law, the man must have signed an acknowledgement of paternity or failed to contest paternity in the previous proceeding because of a mistaken belief that he was the child’s father based on misrepresentations that led him to that conclusion.
If the man knew he was not the father at the time he signed the acknowledgement of paternity or the previous court order, the new law does not apply.
If the genetic testing concludes that the man is not the child’s genetic father, the court shall render an order terminating the parent-child relationship and terminating the man’s obligation for future child support.
The new order, however, does not affect the man’s obligations for child support or child support arrearages accrued before the date of the order. However, the accrued obligations are not enforceable by contempt proceedings.
If the court order states that the father listed on the birth certificate is not the biological father and the information can be removed from the birth record, then the birth certificate can be revised as well.
Even if the parent-child relationship is terminated, the man may request the court to order periods of possession or access to the child following the termination. The court may order periods of possession or access to the child only if the court determines that denial of possession or access would significantly impair the child’s physical health or emotional well-being. The law directs the court to focus on the child’s well-being, not on the man’s desire to continue seeing the child.
If you have been paying child support due to a mistaken belief that you were the father, the time to act is now. Remember the clock is ticking! If you suspect that you are paying child support for a child who is not your biological child, you must file the petition before September 1, 2012. If you wait to file for relief, you will be barred! Contact an attorney now!
What is needed for visitation enforcement?
- A valid court order that has been signed by a judge or issued by the district clerk’s office, certified as having been signed by a judge.
- Be sure to read your order thoroughly. If you do not understand any of the provisions, take it to an attorney and have them explain it to you.
- The custodial parent must have been validly served with the court order or it must be shown that the they had prior knowledge of the court order and its content.
- The custodial parent must have full knowledge of the above two factors and must be intentionally and willfully violating the court order.
Despite the fact that you may have a valid court order, many police departments do not want to get involved in enforcing civil orders. If you call the police department and show them the order they may or may not assist you in gaining access to your children. Despite whether you get your children or not, you need to ask them to create a police report stating that you were there to pick up your children and noting the time and date you were present. If the police refuse to prepare a report, go to a local grocery store or fast food restaurant and purchase something so that you have a receipt stating that you were in the area and stating the date and time you were there.
How to prove a denial of visitation.
Take a witness along with you – preferably an off-duty constable or deputy or neutral party. Have your witness stay in the vehicle, but with the window down so that he/she can hear any conversations that take place. Have your vehicle parked in such a way that the witness can see you at all times.
Take a copy of your divorce decree along with you which shows you are suppose to have possession of your children on the date and time you arrive to pick them up.
Always be on time, and if possible a few minutes early.
If the custodial parent does not answer the door or have the child available to exercise visitation then call the police and request a Police Incident Report. If the police will not issue a police report then make sure you document the incident as best as possible. After two or three violations, take the reports, along with any witness statements, to an attorney to discuss how to bring an enforcement action against the custodial parent who is violating the order.
Take a tape recorder with you, have it running from the time you approach the residence, and do not stop it until you leave. Keep the tape recorder running as you leave the area.
As you approach the residence state the following facts in the recorder: your complete name, the address you are approaching, the reason you are there “I am going to pick up my children as stated in the final decree,” state who is with you and why, state the time of day, state when you are leaving and a brief description of what occurred. Keep a written record of each recording and label them according to date.
Keep a calendar of each denied visitation.
Make sure you have a credible witness each time you try to exercise your possession with your children.
Do not argue with your exhibit-spouse regardless of how angry you are or whether you get your children or not. Staying calm will work in your favor in the long run.
If you file an enforcement action, if the custodial parent continues to deny you visitation after the suit is brought, continue to go and knock on the door to exercise your visitation, as each separate violation of the court order can be used in the enforcement action.