This question causes many divorced or single parents much stress concerning meaningful contact with their children. “What do I need to do to legally secure my specific summer visitation periods with my kids?”. Here is a general breakdown of Texas law on summer visitation:
Family code: 153.312: Notification of Summer Visitation: Parents who reside 100 miles or less apart.
A possessory conservator gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, with each period of possession beginning and ending at 6 p.m. on each applicable day; or does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 consecutive days beginning at 6 p.m. on July 1 and ending at 6 p.m. on July 31;
If the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator shall have possession of the child on any one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (2), provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place;
If the managing conservator gives the possessory conservator written notice by April 15 of each year or gives the possessory conservator 14 days’ written notice on or after April 16 of each year, the managing conservator may designate one weekend beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by the possessory conservator will not take place, provided that the weekend designated does not interfere with the possessory conservator’s period or periods of extended summer possession or with Father’s Day if the possessory conservator is the father of the child.
Divorce, paternity or other orders setting out access/possession rights should specifically set out this information. Such orders are usually custom and specific on times and dates for summer and other holiday visitations.
In today’s world, a statutory preset structured visitation schedule does not always work in a blended family environment. Many fathers are now either sole managing conservator or co-managing conservators with the mother. The current standard visitation schedule is used more as a basic presumed schedule to which extended time may be added for cause good for more equal shared time with the children.
With an enlightened public awareness and presumption under law that children need quality time with both parents, many parents are looking for modifications to child visitation orders that agrees with their lifestyles to share their children equally and fairly.
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:
- If the man is married to the mother and the child is born during the marriage;
- If the child is born before the 301st day after the day the marriage is terminated by death, annulment, invalidity, or divorce;
- If the man is married to the mother before the birth of the child in apparent compliance with the law;
- 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.
When the custodial parent of a child dies, in the state of Texas, not only is the child and family union devastated, but now is presented the difficult issue of who will become the child’s guardian. Who are the possible candidates that may be legal guardians?
- Non- Custodial parent, if paternity is acknowledged
- Other relatives
- Godparents, Family friends, Neighbors
- State Foster System
Usually, the surviving non-custodial parent will have an automatic right to custody of the child. Texas law favors a child having a solid relationship with both parents and in the event of death, the living parent will take over permanent exclusive custody of the child. What factors should be considered in the child’s best interest that could determine custody by the surviving parent if he/she is not appropriate for the child?
- Did the court, after the divorce, terminate your parental rights in a legal proceeding? If the non- custodial parent had legally been terminated of his/her parental rights this is binding and the terminated parent WOULD NOT be granted permanent custody of the child.
- What if the custodial parent remarried and the new stepparent legally adopted the child? If the child was legally adopted by the stepparent and the non-custodial parent had waived their parental rights, the stepparent would be granted permanent custody of the child.
- What if the non-custodial parent has acknowledged parentage, but paternity has not been established? To be entitled to custody of the child, the father would first claim parental rights through paternity testing to determine if he is the biological father of the child or if he has signed the child’s birth certificate. After Paternity is established, a separate legal proceeding may need to be initiated to override the terms of the mother’s will.
- What if the Custodial Parent created a will that stated the grandparents/godparents would take over as the legal Guardians of the child in the event of death? Many parents will request a particular person or group, such as grandparents, relatives, or godparents to become guardians for their minor children in the case of their demise, but a child is not a piece of property to give away to others when the other biological parent is living. The judge will view what is in the best interest of the child and will always first look at the surviving parent. If this parent meets basic standards the child will live with this parent. If the surviving parent cannot serve the child’s best interest, then the judge will consider the guardian designated in the deceased parent will.
Nacol Law Firm P.C.
Are you the father of a child in Texas and Mom is refusing to let you see or communicate with your child? Are you paying child support in Texas for your child, yet Mom tries to dominate all interaction between you and the child to suit her needs. Is this Parental Alienation in the present or a step commencing down that path?
Fathers have rights in Texas and because this is one of the more frequent calls we receive from Dads, I thought it was time to discuss some specific law from the Texas Family Code regarding the rights and duties afforded to a Parent, whether Mom or Dad!
Under the Texas Family 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.
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.
If the above applies to you and you have established legal standing to support that you are “the father,” what are your rights and duties as the Texas Family Code Sec. 151.001 states:
§ 151.001. Rights and Duties of Parent
(a) A parent of a child has the following rights and duties:
(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;
(2) the duty of care, control, protection, and reasonable discipline of the child;
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
(4) the duty, except when a guardian of the child’s estate has been appointed, to manage the estate of the child, including the right as an agent of the child to act in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government;
(5) except as provided by Section 264.0111, the right to the services and earnings of the child;
(6) the right to consent to the child’s marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;
(7) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(8) the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
(9) the right to inherit from and through the child;
(10) the right to make decisions concerning the child’s education; and
(11) any other right or duty existing between a parent and child by virtue of law.
Both parents have these rights unless a court order has created, modified, ordered, or delegated the statuary rights of a parent. The rights you have will support and empower you in a hands on relationship with your child.
All parents have the right to have a relationship with their children! One misguided parent may attempt to employ parental alienation to hurt the other parent and cause the child to be denied a loving relationship with the other parent. Know your rights and contact an attorney who can help you and your child fulfill a meaningful relationship!
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.