Paternity Flashcards
Venue
Venue is in the county where the child resides, where the respondent resides if the child does not reside in TX, or where the presumed father’s probate proceeding or administration is filed.
No Jury Trial
The court must adjudicate a paternity suit w/o a jury.
Standing
The following persons or agencies may bring a paternity suit:
i) The child
ii) The child’s mother
iii) A man whose paternity is to be adjudicated
iv) The support enforcement agency or another govt agency authorized by law
v) An authorized adoption agency or licensed child-placing agency
vi) A representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, is incapacitated, or is a minor;
vii) If the mother is deceased, a person related within the second degree by consanguinity to the child’s mother; or
viii) A person who is an intended parent
Involuntary Termination Proceeding for Alleged Father’s rights
Since the father has rights that are equitable to the mother, he has standing to challenge the adoption of the child. Therefore, a procedural mechanism facilitates adoption proceedings by terminating the father’s rights when the father is unknown or has no interest in the child. If a father has not signed an Affidavit Waiver of Interest, the father’s rights can be terminated if:
i) He failed to file with the Texas Bureau of Vital Statistics Paternity Registry;
ii) Although registered with TBVSPR, attempts to serve him at the address listed w/ the registry and any other addresses by the petitioner have been unsuccessful despite due diligence of the petitioner; or
iii) After being served, the alleged father fails to respond by a counter claim of paternity or acknowledgment of paternity
Paternity Presumption - Generally
A man is presumed to be a child’s father if:
1) He is married to the child’s mother and the child is born during the marriage;
2) He is married to the child’s mother and the child is born within 301 days of when the marriage (or void or voidable marriage) ends by death, annulment, declaration of invalidity, or divorce;
3) He married (or attempted to marry through void/voidable marriage) the child’s mother after the birth and voluntarily asserted his paternity and:
a) Assertion is a record filed w/ Bureau of Vital Stats;
b) He is voluntarily named as child’s father in birth certificate; or
c) He promised in a record to support child as his own
iv) During the first two years of the child’s life, he continuously resided in the child’s household and represented to others that the child was his own
Paternity Presumption - Rebuttal
The paternity presumption may be rebutted in one of two ways:
1) Valid denial of paternity with another’s acknowledgment of paternity - if the presumed father files a valid denial of paternity in conjunction w/ another man’s filing of a valid acknowledgment of paternity, this rebuts the presumption of his paternity.
2) Genetic Tests
A man is identifies as the father if genetic tests show a 99% probability of paternity. May only rebut if other genetic tests satisfying stat requirements exclude him as father or identify another man as father.
If an alleged father refuses to submit to genetic testing, he may be held in contempt of court, mother may receive a default judgment adjudicating the man to be child’s father.
If an alleged father for good cause is not available for testing and a court determines a need for testing that outweighs the legit interests of the individual, court may require a relative of the alleged father or that a deceased individuals’ remains be submitted for good cause shown.
A case may not be dismissed if genetic tests prove inconclusive. Instead, other evidence must be used to prove or disprove paternity.
Paternity Presumption - Paternity by estoppel
The doctrine of paternity by estoppel has been enacted in TX through the adoption of the Uniform Parentage Act (UPA). The doctrine is only applicable to married persons involving a situation in which the either has detrimentally relied on the alleged father’s presumed parentage.
As a result, a court may deny a motion for a genetic testing order if a court determines that:
i) The conduct of the mother or the presumed father estops that party form denying parentage; and
ii) It would be inequitable to disprove the father-child relationship between the child and presumed father
When a court determines whether to deny a motion for an order of genetic testing based on the estoppel doctrine, it must do so based on C&C, and will consider such factors as:
i) Amount of time that the presumed father has assumed parentage
ii) Amount of time between the day the paternity suit was filed and the day the presumed father was put on notice challenging his paternity
iii) Facts leading up the presumed father’s notice challenging his paternity;
iv) Harm that may come to child if case disproved
v) Child’s age and nature of relationship w/ the presumed father; and
vi) Any factors that may “affect the equities arising from the disruption of the father-child relationship between the child and the presumed father.”
Paternity Presumption - Statute of Limitations
1) No presumed father
If the child has no presumed, acknowledged, or adjudicated father, there is no statute of limitations on a proceeding to adjudicate paternity.
2) Presumed Father
If the child has a presumed father, a suit to adjudicate paternity must be brought within four years of the child’s birth. A suit to adjudicate the father-child relationship between the child and presumed father may be brought at any time if a court finds that:
i) The presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or
ii) The presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the court years, because of the mistaken belief that he was the child’s biological father based on misrepresentations that led him to that conclusion.
A motion must be filed no later than one year after the man learns he is not the genetic father
Paternity Presumption - Temporary Child Support
A court can render a temporary order for child support if the individual ordered to pay child support is:
i) the presumed father of the child
ii) petitioning to have his paternity adjudicated
iii) identified as the father through genetic testing;
iv) an alleged father that has declined genetic testing;
v) shown by C&C to be the father of the child; or
vi) the mother of the child
Th order may provide for possession or access to the child.
Paternity Presumption - Effect of adjudication
Once a father’s paternity has been established, a court may provide for a managing or possessory conservatorship, and order child support and the payment of court costs and attorney’s fees. A court may also order the payment of all parental and postnatal health care costs.
A court can order retroactive child support. In determining the amount owed, the court will consider the net resources of the obligor during the relevant time period and whether:
i) the mother of the child attempted to notify the obligor of his paternity;
ii) the obligor knew or probably knew of his paternity;
iii) the retroactive child support will impose undue financial hardship on the obligor or the obligor’s family; and
iv) the obligor has provided support before filing the action
There is a rebuttable presumption that the father should provide retroactive child support for the preceding four years, unless it is shown that the man knew or should have known that he was the father and sought to avoid the obligation.
Paternity Presumption - Paternity Acknowledgement
A mother and presumed father may file an acknowledgment of paternity at the Bureau of Vital Statistics before or after the child’s birth. If the mother declares that she is married to a man other than the father of her child, then the acknowledgement must be accompanied by a denial of paternity by the presumed father unless he signs the acknowledgment accepting the presumption of fatherhood.
An acknowledgment of paternity is equivalent to a judicial determination of paternity.
Rescission of the acknowledgment or denial of paternity may be made not later than 60 days after the filing. After 60 days, acknowledgement or denial of paternity must be based on fraud, duress, or material mistake of fact and be made within he 4 year SOL.
Paternity Presumption - More than one presumed father
A man may bring a paternity suit and contest a presumed father’s paternity, but if the presumed father and mother were living together during conception, the suit must be brought within a four-year state of limitations period.
Mistaken Paternity
A termination suit may be brought by a man who signed an acknowledgement of paternity without first obtaining genetic testing or by a man adjudicated as the father in a prior proceeding when genetic testing did not occur. Verified termination suits must allege facts that state that the petitioner (1) is not the child’s genetic father; and (2) he signed acknowledgement of paternity or failed to contest parentage because of the mistaken belief that he was a child’s genetic father based on misrepresentations that led him to that conclusion. Generally, a petition for termination based on this section must be filed no later than the second anniversary of the date on which the petitioner becomes aware he is not the child’s genetic father.
An order terminating the PCR also terminated the petitioner’s obligation for future child support as well as obligation to pay any interest on child support arrearages or judgments that carries as of that date. Such an order does not affect an obligor’s obligation for support of a child incurred before the date of the final order.
