She Says I’m the Father : Now What?
Recently the news covering the custody battle between Bode Miller and his child’s biological mother Sarah McKenna became a 24-hour news cycle. According to court filings, Ms. McKenna while still pregnant moved to New York from California to attend school. Approximately a month prior to Ms. McKenna’s departure from California, Mr. Miller filed a paternity and custody suit in California State Court. Two days after the child was born, Ms. McKenna filed a custody case in New York State Court. The New York family court decided that the Ms. McKenna had “fled” California with the child in utero; and, while this was not child abduction under the UCCJEA, the Court decided the move was simply to avoid the California Court’s jurisdiction. Further, the Court decided that the prior paternity/custody suit filed in California by Mr. Miller, “trumped” the New York filing as well, giving California statutory authority to decide the custody issue. In On November 14, 2013, the New York Family Court’s decision was overturned on appeal and was remanded back to New York family court for further decision on all issues.
This case has ignited a debate over whether a mother may move an unborn child to a different jurisdiction prior to the birth of the child.
Even if you have not been proven to be the biological father of the child, in Texas, you still have legal rights that may be enforced.
Prior to the birth of the child, you may request a DNA test from the court. If the mother agrees paternity can be determined even before the baby is born. In addition, now there are non-evasive and less risky options for prenatal testing for paternity.
A purported father does have the right to establish paternity. Establishing paternity in Texas can be a process that occurs prior to the birth of the child. There are several forms of pre-natal testing available. Some methods are costly and some methods more invasive than others. In Texas, a man can establish paternity prior to the birth of a child by filing a request for adjudication of parentage and voluntary litigation. If the mother agrees to prenatal testing the Court will accept the DNA test results and make a determination on the record. However, if the mother does not agree, a Court may not force her to have invasive testing on the fetus.
A purported father has a right to a custody determination although this right cannot be determined prior to the birth of the child. In Texas, a court has jurisdiction to decide custody issues if Texas is the “home state” of the child. In the case of a child less than six months of age, “home state” means “the state in which the child lived from birth with a parent. . . .” Tex. Fam. Code Ann §152.102(7); see also Waltenburg v. Waltenburg, 270 S.W.3d 308, 315 (Tex. App.—Dallas 2008, no pet.).
Out of Wedlock Children and Texas Fathers Rights
The Brookings Institute states that 41% of all births in 2012 were to unwed mothers! What are a father’s rights over his children? With dropping marriage rates and increasing non-married couples living together, the percentage of children being born out of wedlock is growing yearly. How are the fathers of these children treated? 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?
In today’s fast pace world there are many situations where a woman may selfishly just want a child with no strings attached, including a dad! Welcome to the internet dating world! Many professional men are contacting us concerning an internet dating contact, a short relationship, and pregnancy. The father then is told he will not be allowed in the child’s life and if he tries, serious legal problems will be encountered or he will face serious and costly legal road blocks pursued by the mother!
Practicing attorneys in Texas who defend Interstate Jurisdiction cases help many fathers who live in other states while the mother and child reside in Texas.
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.
What should a father, living out of state, with a child living in Texas, do to establish his paternity and legally enforce his father’s rights? He should consult an attorney ASAP who can help him obtain and preserve his paternity rights with his child. Once the judge issues a finding of paternity, the father has all the rights of any other father such as custody, decision making, conservator rights, and visitation rights.
How does the father file for paternity of the child in Texas?
Paternity Registry (Family Code 160.401-2)
A man who desires to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered may register with the registry of paternity:
Before the birth of the child or no later than the 31st day after the date of the birth of the child
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 litigation.
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!
Texas HB154: Termination of Mistaken Paternity & Duty to Pay
Texas HB154: Termination of the parent-child relationship and the duty to pay child support in circumstances involving mistaken paternity. This law, effective immediately, aims to further protect a mistaken father from certain child support payment obligations. This new law also amends the current law, SB785: Mistaken Paternity.
The new law states that a petition must be filed not later than the second anniversary of the date on which the petitioner becomes aware of the facts alleged in the petition indicating that the petitioner is not the child’s genetic father.
An order termination the parent-child relationship ends the petitioner’s obligation for future support of the child as of the date the order is rendered. Also the obligation to pay interest that accrues after that date on the basis of a child support arrearage or money judgment for a child support arrearage existing on that date.
Those obligations are enforceable until satisfied by any means available for the enforcement of child support other than contempt. This applies to the current law suit pending in a trial court on the effective date of this Act or filed on or after that date is affected.