Michael
Acknowledged fathers, presumed fathers, and Adjudicated fathers are terms used to describe standing to sue for parental rights of a man. A Father who has signed an acknowledgement of paternity is a acknowledged father. Many times the acknowledgment of paternity will be signed at the hospital at the time the child is born however you can also go to the attorney general’s office and sign an acknowledgement of paternity. These are forms for which the father child that is verified and the mother signs as well, the document is then filed by certified entities that have an entity code with the Texas bureau of vital statistics and that establishes a parent-child relationship as far as allowing the father then to claim certain rights as to the child it gives him standing to file a suit for possession and access, it allows the child to inherit through the father if the father were to pass away or collect social security. Now a presumed father works a little differently and the presumed father can occur under any one of the five factual circumstances as I state to you. A child is born during a marriage between the man and the child’s mother; the man married to child’s mother and the child born before the 301st day after the marriage is terminated; the man is married to the child’s mother before the birth of the child even if the marriage is voidable; the child is born on or before the 301st day after avoidable marriage is terminated; the man marries to the child’s mother after birth of the child even if marriage is voidable and the man voluntarily asserted his paternity of the child as evidenced by written assertion filed with a vital statistics unit; or man is voluntarily named as father on birth certificate or man promised in a record to support the child as his own; during the first two years of the child’s life the man continuously resided in the child’s household and represented to others that the child is his own. So, as I read the presumptions here in these categories many times the issues arise which are having to be troubleshooted by attorneys in the courts. As to same-sex marriages two women get pregnant and then what are you going to do as to paternity, so you’ll have to enjoin the fathers the gentlemen who had sex with the women or if there was some type of gestational agreements, you’ll need to produce those and you’ll have to explain to the court the status of the father. A void marriage is typically where someone is married to someone else and that marriage has not been terminated and so if you think you’re married and you have a ceremony but you’re unaware your spouse was married to someone else and that marriage has not been dissolved that’s potentially a void marriage, also if you are under the age of 18 and you have a marriage and you do not have judicial consent that marriage is void in Texas so those are the a couple fact patterns to give you to explain the details as to these categories of a presumption of paternity. Now the presumption can be only overcome by adjudication which is the filing of a lawsuit, and you have to adjudicate paternity to overcome the presumption. Generally, a proceeding to adjudicate parentage of a child having a presumed father must be brought by the presumed father the mother or another individual who may be a person who has actual possession of the child, child protective services or another gentleman who claims to have had sexual relations with the woman and to be the father of the child.
The proceeding must be commenced no later than the fourth anniversary after the birth of the child, however a proceeding to adjudicate parentage may be initiated at any time if the court determines that the presumed father and the mother did not live together or engaged in sexual intercourse with each other during the probable time of conception or the presumed father was precluded from commencing and proceeding to adjudicate the parentage of the child before the child’s fourth birthday because of the mistaken belief based on misrepresentations led him to believe that he was the child’s biological father. So, this is generally where the woman has had affairs and told the husband that she’s pregnant they have a baby and as the baby gets older the baby looks nothing like the father and the father does the DNA test husband does the DNA test and it comes out the child’s not his and it’s been more than four years. And so many times the women will say you’re time barred because of the four years but then you have a what’s called a fact finding by the court and with the fact finding by the court the court will look at the time that the father knew or should have known that he was not the father that the husband was lied to, and many times you’ll have men who cannot have children and they’ll be in love with a woman and then there’ll be agreements that the woman can have outside relationships for the purposes of getting pregnant and when she’s pregnant she’s supposed to stop but then she keeps having extramarital affairs which creates a jealousy situation and so like I said it’s a fact intensive examination but you can and I have prosecuted cases that are beyond the four years if you have facts which show deception on behalf of one of the parties which is generally the woman. The suit to establish the parent-child relationship is also part of adjudication a child that has no presumed acknowledged or adjudicated father, this type of proceeding may be commenced at any time to adjudicate a potential father of a child. Now challenges that you may make to the paternity mistaken paternity is going to involve the filing of a suit to terminate, and so a man may sue to terminate the parent-child relationship between the man and the child if without obtaining genetic testing he signed an acknowledgment of paternity or was adjudicated to be the father of the child in a previous proceeding in the family law courts. This pleading must be verified and must have plead facts showing that petitioner is not the genetic father; petitioners sign the acknowledgement opportunity; or fail to contest the parentage in the previous proceeding because of a mistaken belief he was on the child’s birth certificate and that the mother told him that he was the father of the child. The petition must be filed no later than the second anniversary date on which the petitioner became aware of the facts alleged indicating the petitioners not the child’s genetic father. So, this is how you get around the four-year requirement that is your statute of limitations to contest paternity when you are otherwise adjudicated or there is a presumption of paternity. The court must conduct a pretrial hearing to determine the existence of a meritorious prima facie case. So generally what you do is you go get a home DNA kit you take the test that quality control in chain of custody for those DNA kits are usually attacked, but that’ll give you enough evidence to have a court ordered test in which they’ll be enhanced chain of custody controls and once you have the second test then if the second test excludes you under this family law section which is the “suit to terminate under 161.005 of the family code” the statute reads if petitioner is excluded order of termination shall be entered, so that’s a shall statute that means the court has no discretion. The order of termination does not affect your existing child support arrearages so if you have an order out there that you’re paying child support on from several years ago you’re still going to have to pay that, but it does terminate future child support obligations and interest obligations. The prior existing obligations can still be enforced by contempt. If requested by a parent. The court may grant post-termination possession access if the court determines that denial of such periods of possession and access would significantly impair the child’s physical health or emotional well-being. The court may require that the child or any party participate in counseling. And you would still have certain rights and duties if you have possession access for a period of time as to the child which would be during your period of possession to consent to basic medical care, religious services. And so many times the man will want to walk away because the woman usually is going to be having problems with the child because she lied both to the child and to the man, and so the man will try to get as far away from the couple as possible. However, many times they’ll be a situation where the man and the child will go through some form of counseling but what I’ve seen is that most men don’t want to do this and many times the woman will find who the actual father is and then that new relationship will start and then the father who is the actual biological father will come into the picture and start to exercise his periods of possession. And then there’ll be the blossoming of that relationship with a child’s actual father at that time.
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