texas family code

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 an effective acknowledgment of paternity by the man under Subchapter D, unless the acknowledgment has been rescinded or successfully challenged;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 | Paternity
DETAIL

Divorce: What is separate property and what is community property?

Under the Texas Family Code, a spouses separate property consists of 1) the property owned or claimed by the spouse before marriage; 2) the property acquired by the spouse during marriage by gift, devise, or descent, and 3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

The terms “owned and claimed” as used in the Texas Family Code mean that where the right to the property accrued before marriage, the property would be separate.  Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested.  The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate.  Inception of title occurs when a party first has a right of claim to the property. 

Under Texas Constitution, Art. XVI, Section 15, separate property is defined as all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate  and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses may also from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all income or property which might arise from that gift of property; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.

In 1917 the Legislature defined and income from separate property to be the separate property of the owner spouse.  In Arnold v. Leonard, 114 Tex. 535,273 S.W. 799 (1925), the Supreme Court held that the Legislature did not have the constitutional authority to characterize the income from separate property as the owner’s separate property.  The court explained that the Legislature’s authority was limited to enacting laws regulating the management and liability of marital property, not its separate or community character.  This decision strengthened the constitutional principal that the Legislature may not define what is community and separate property in a manner inconsistent with Article 16, Section 15 of the Texas Constitution.

There are numerous means by which separate property may be acquired in defiance of Article 16, Section 15, a partial list includes mutations of separate property, increases in value of separate land and personality, recovery for personal injury not measured by loss of earning power, improvements of separate land with an unascertainable amount of community funds, and United States Securities purchased with community funds.

Although such property may undergo changes or mutations, as long as it is traced and properly identified it will remain separate property.

The Texas Family Code defines community property as follows:  “community property consists of the property, other than separate property, acquired by either spouse during marriage.”

Texas Family Code, Section 3.003 states that all property possessed by either spouse during or at the dissolution of the marriage is presumed to be community property and that the degree of proof necessary to establish that property is separate property, rather than community property, is clear and convincing evidence.  Clear and convincing evidence is defined as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.  If property cannot be proved to be separate property, then it is deemed to be community property.

The Texas Family Code, Section 7.002, deals with quasi-community property and requires a court divide property wherever the property is situated, if 1) the property was acquired by either spouse while domiciled in another state and the property would have been community property if the spouse who acquired the property had been domiciled in Texas at the time of acquisition; or 2) property was acquired by either spouse in exchange for real or personal property and that property would have been community property if the spouse who acquired the property so exchanged had been domiciled in Texas at the time of the acquisition.

By Nacol Law Firm | Property and Asset Division
DETAIL

What About Texas Spousal Support Laws ?

In September 1, 2011, Texas House Bill 901 ( Texas HB 901 ) revised the spousal maintenance law in the Texas Family Code effective for divorce cases filed on or after September 1, 2011. The bill revised the conditions that establish eligibility for spousal maintenance, commonly referred to as alimony, and changes the factors required to be considered by a court in determining the nature, amount, duration, and manner of periodic payments for a spouse who is eligible to receive maintenance.

Eligibility for spousal maintenance still requires that the spouse seeking maintenance lacks sufficient property to provide for the spouse’s minimum reasonable needs.

The law provides potentially increased relief to spouses who have been out of the work force, are disabled, are victims of family violence or are the primary custodians of a disabled child.

Some of the major items in the Texas Spousal Support Law are:

1. The maximum amount of spousal support that courts may award increased from $2,500 to $5,000.00 per month, although it is still limited to 20 percent of the payer’s average gross monthly income.

2. The duration of spousal support in Texas is a maximum of 5, 7 or 10 years, generally depending on the length of the marriage.

3. The law clarifies if a person has primary care for a disabled child, the custodial parent may be prevented because of the child’s disability from earning sufficient income to meet the custodial parent’s minimum reasonable needs.

4. The law also clarifies a person may not be held in contempt for failing to pay spousal support which is in an agreed order and extends beyond the period of time provided under the law.

In order to receive “maintenance,” (which is the statutory term for spousal support), the spouse seeking support must lack sufficient property to provide for the spouse’s “minimum reasonable needs”, AND one of the following:

(1) The recipient must be unable to earn sufficient income to provide for his or her minimum reasonable needs because of an incapacitating mental or physical disability;

(2) The marriage lasted for 10 years or longer and the recipient lacks the ability to earn sufficient income to provide for his or her minimum reasonable needs;

(3) The recipient is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs; OR

(4) The person ordered to pay support was convicted of or received deferred jurisdiction for an act of family violence during the pendency of the suit or within two years of the date the suit is filed.

The court can order maintenance to continue for:

(1) 5 years if the parties were married less than 10 years and the maintenance is awarded due to family violence;

(2) 5 years if the parties were married more than 10 years, but less than 20 years.

(3) 7 years if the parties were married more than 20 years, but less than 30 years;

(4) 10 years if the parties were married for more than 30 years.

In cases where the maintenance is awarded due to the mental or physical disability of the spouse or a child of the marriage, the court may order that the maintenance continue as long as the disability continues.

However, in all circumstances, the law provides that the Court shall order maintenance for the shortest reasonable period that allows the recipient to earn sufficient income to meet his or her reasonable needs.

What about Termination?

a. The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the oblige.

b. After a hearing, the court shall order the termination of the maintenance obligation if the court finds that the obligee cohabits with another person with whom the obligee has a dating or romantic relationship in a permanent place of abode on a continuing basis.

c. Termination of the maintenance obligation does not terminate the obligation to pay any maintenance that accrued before the date of termination, whether as a result of death or remarriage

If you are contemplating dissolving your marriage and have questions concerning your financial future, seek competent legal counsel to help you determine whether you could be eligible for spousal support the provisions of the law.

 

By Nacol Law Firm | Spousal Support
DETAIL

Preventing Out of State Relocation of Children by Custodial Parent

Mom and Dad are divorcing or have been divorced and are now sharing joint custody of their children in the same city in Texas.  One parent receives a letter from the other parent’s attorney requesting that this parent be allowed to relocate the children to another state so he/she may take a better job position with another company!  This is a dilemma no parent ever wants to experience!  Child Custody cases involving interstate relocation jurisdiction issues cause much heartache and are costly legal battles.

What can a Parent do to protect themselves from children being relocated away from the non-moving parent to another state without her/his consent?   How may this affect the parent’s relationship with the children?

The Texas Family Code 153.002 Best Interest of Child states “The best interest of the child shall always be the primary consideration of the court in determining the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

The Texas Family code does not elaborate on the specific requirement for modification in the residency-restriction context, and there are no specific statutes governing residency restrictions or their removal for purposes of relocation. Texas Courts have no statutory standards to apply to this context.

The Texas Legislature has provided Texas Family Code 153.001, a basic framework on their public policy for all suits affecting the parent-child relationship:

  1. The public policy of this state is to:

  1. Assure the children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

  2. Provide a safe, stable, and nonviolent environment for the child;

  3. Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

How does The State of Texas treat an initial Child Custody determination?

Texas Family Code 152.201 of the UCCJEA states, among other things, that a court may rule on custody issues if the Child:

*Has continually lived in that state for 6 months or longer and Texas was the home state of the child within six months before the commencement of the legal proceeding.

*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.

*Has an established relationship with people (family, relatives or teachers), ties, and attachments in the state

*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state

Relocation is a child custody situation which will turn on the individual facts of the specific case, so that each case is tried on its own merits.

Most child custody relocation cases tried in Texas follow a predictable course:

  1. Allowing or not allowing the move.

  2. Order of psychological evaluations or social studies of family members

  3. Modification of custody and adjusting of child’s time spent with parents

  4. Adjusting child support

  5. Order of mediation to settle dispute

  6. Allocating transportation costs

  7. Order opposing parties to provide all information on child’s addresses and telephone #

Help to Prevent Your Child’s Relocation in a Texas Court by Preparing Your Case!  

  1. Does the intended relocation interfere with the visitation rights of the non- moving parent?

  2. The effect on visitation and communication with the non-moving parent to maintain a full and continuous relationship with the child

  3. How will this move affect extended family relationships living in the child’s current location?

  4. Are there bad faith motives evident in the relocating parent?

  5. Can the non-moving parent relocate to be close to the child? If not, what type of separation hardship would the child have?

  6. The relocating parent’s desire to accommodate a new job, spouse, or other criteria above the parent-child relationship. A Parent’s personal desire for move rather than need to move?

  7. Is there a significant degree of economic, emotional or education enhancement for the relocating parent and child in this move?

  8. Any violation of an order or prior notice of the intended move or a temporary restraining order

  9. Are Special Needs/ Talents accommodated for the child in this move?

  10. Fear of child and high cost of travel expenses for non-moving parent or child to visit each other to be able to continue parent- child relationship.

  11. What other Paramount Concerns would affect the child concerning the relocation from the non-moving parent?

At the Nacol Law Firm PC, we represent many parents trying to prevent their child from relocating to another city or state and having to experience “A Long Distance Parental Relationship” brought on by a better job or new life experience of the relocating parent! We work at persuading courts to apply the specific, narrow exceptions to these general rules in order to have child custody cases heard in the most convenient forum in which the most qualifying, honest evidence is available; cases where the child’s home state or other basic questions are clarified, and cases where a parent has the right in close proximity with their child regardless of other less important factors.

By Nacol Law Firm | Child Custody . Interstate Jurisdiction
DETAIL

Shared Parenting With Texas Child Possession Orders

If only divorced parents could mutually agree on meaningful possession schedules while co-parenting their kids! But since many cannot or will not, the Texas Courts generally use a One-Size-Fits-All Standard Possession order for all children over three years of age.  The Texas Legislature over time has expanded the schedule to make access a little more flexible. Does this always squarely meet or suit the needs of a child and her/his relationship with both parents?

The Section 153.001 of the Texas Family Code is the State’s policy on possession schedules and its formation:

  1. Assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interests of their child;

  2. Provide a safe, stable, and nonviolent environment for the child;

  3. Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved the marriage.

The Texas Family Code, section 153.002 also states that “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship, possession of, and access of the child”. Because of this the Texas Courts are given wide range in determining a child’s best interest in possession schedules.

What about fair and equal Parent Possession Schedules? This is easier desired than accomplished! In E. Mavis Hetherington’s book, For Better or for Worse, Three types of co-parenting relationships are identified:

  1. Conflicted: Parents have frequent conflict, communicate badly, and have difficulty disengaging emotionally from the marriage (20-25%)

  2. Parallel: Parents who emotionally disengage from each other, with little communication and who usually do not coordinate child-related issues between themselves although conflict is minimal. (Over 50%)

  3. Cooperative: Parents who work together to actively plan their children’s lives and support each other. They work toward conflict free possession schedules in a nurturing parenting situation. (25%-30%)

Despite many separation and divorce related conflicts among parents, the main beneficial recipients of shared parenting are the children. When both parents are positively engaged in the parent-child relationship, probabilities are much higher for positive adjustment, better academic achievement and positive mental development of a child.

In Johnston & Campbell’s book, Impasses of Divorce, their findings support that the majority of parents substantially reduce their pre marital conflict within 2-3 years after divorce. Regrettably, 8%-20% of parents remain in a state of chronic high conflict!

How can Parents promote or enhance shared parenting in possession schedules?

Many parents will usually find a way or the mechanism to eventually work together for the benefit of the child, no matter how contentious the divorce. Even if shared parenting is not possible, parallel co-parenting reducing conflict may be acceptable. But if the parental conflict is high, try to use and enforce a possession schedule that limits parent contact during possession exchanges of the child and accordingly reduce conflict opportunity.

Parents: Leave your conflicts at home. You are divorced!  Concentrate on what is best for your child.  You are the lifetime primary example for your child on how families communicate.  Be mature and responsible and show your child that no matter what has occurred in the past, and regardless of fault, your joint goal is an emotionally healthy child over the long haul.

 

DETAIL

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.

TOP