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I previously talked about the ways to establish paternity in Texas, but today I wanted to go a little more in depth and discuss some of the time restraints regarding paternity.
The Texas Family Code has no time limitation to bring a lawsuit to adjudicate the parentage of a child who has no presumed, alleged, or adjudicated father. However, if the child does have a presumed father (mother and father are married) then any lawsuit to adjudicate the parentage must be brought within four years of the child’s birth.
Courts have said the four year deadline is meant to limit the time to establish parentage when there is a presumptive father so as to protect the family unit.
The four year limitation may be overcome if:
So, although the four year limitation may be overcome, the more time that goes by the harder it may be. If a man believes he may be the father of a child whose mother is married that man should bring forth a suit to determine paternity by the time the child is four years old. And consequently, a married man who believes a child may not be his should not wait past four years to request a paternity test.
Part of any Texas divorce is dividing the community property owned by the spouses. The first step in dividing the property is determining how much the property is worth.
Some property, such as a bank account, will have a set value. But many other assets will be more difficult to determine the value. For example, the parties may own a house, but what is that house really worth- what could it be sold for? There may be a retirement account, but if you take money out of the account you will most likely incur a 10% tax penalty plus regular income taxes.
Texas divorces will appraise the property according to the fair market value. Fair market value is just what would “a willing buy who desire to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling.”
If the parties can’t agree on values, the court will determine the value based on the evidence presented. This can be in the form of documents, such as receipts, it can be the testimony of what the spouse believes it to be worth, or even expert testimony, such as a real estate appraiser. The type of evidence needed will be based on many factors including the value of the item and how unique it is.
If a Texas child custody case involves concerns about international travel for the children, parents should be aware of some of the rules and regulations for that travel.
Federal law governs many of the issues that arise in international travel. Federal law requires that passport applications involve both parents or that one parent have proof of sole custody. The U.S. State Department also runs a program called the Children’s Passport Issuance Alert Program where a parent is notified if a passport is requested in that child’s name. Finally, parents must provide notarized consent for their children to travel internationally if that parent will not be with the child.
If there is no risk of international abduction, Texas courts can put in provisions for international travel including, (1) which parent is authorized to apply for the child’s passport, (2) requiring the parents to notify the other parent if a passport has been applied for, (3) which parent has the right to maintain the passport, and (4) require that a parent traveling internationally provide the other parent with a travel itinerary which includes the dates of travel, travel information such as flight number, locations to be visited, contact information in the other country.
Texas courts also have safeguards if there is a concern that the parent may abduct the child and take him or her to another country. These safeguards include (1) appointing sole managing conservator the parent who is not a risk of abducting the child, (2) require supervised visitation by the parent, and (3) requiring a traveling parent to post a bond prior to travel. The bond would be for an amount that could cover the cost of pursuing an international abduction situation.
When preparing for an international trip parents should keep some of these rules in mind to keep issues from popping up at the last minute. The last thing you want before an expensive, long planned trip is issues about passport or travel notices.
In contested child custody cases, one way for a court to help determine the best interests of a child is through the help of a guardian ad litem. As opposed to an attorney ad litem, a guardian ad litem is generally not an attorney but someone with a background in education or child welfare. The guardian ad litem provides the court with a neutral, third party view of what’s best for the children.
A guardian ad litem will generally interview the child, family members, and others who have significant contacts with the child. The guardian ad litem can also examine school and medical records. The guardian ad litem then reports back to the court giving his or her opinion as to what is in the child’s best interest.
Either party may request a guardian ad litem or the ad litem may be appointed by the court on its own. Parents should help the guardian ad litem by providing any relevant documents or other information sought by the ad litem.
The guardian ad litem doesn’t represent the child in court like an attorney ad litem does, but does provide the court with unique ability to evaluate the child’s circumstances in a setting less formal than court.
This is a continuation of the prior discussion about establishing paternity in Texas. I previously discussed presumption of paternity, but today I’ll talk about the other two ways to establish paternity: (1) acknowledgement of paternity and (2) court order of paternity.
An Acknowledgement of Paternity is for when the child’s parents are not married or if the genetic father is not the presumed father of the child. The Acknowledgement of Paternity is a form filled out and signed by the mother and man claiming paternity. The form is filed with the Texas Vital Statistics Unit and acts as an establishment of paternity.
If there is a presumed father who is not the actual genetic father, the presumed father would sign a Denial of Paternity and then the genetic father can sign the Acknowledgement of Paternity.
In situations where there is a disagreement over the genetic paternity of a child, a court order of paternity may be needed. For instance, if a presumed father won’t sign a Denial of Paternity or a believed genetic father won’t sign an Acknowledgement of Paternity a court case may be needed to establish paternity.
Typically, in such a case, the court will order all alleged fathers to undergo genetic testing. Once the genetic testing is done, the court will adjudicate the legal parent child relationship between the child and the person determined to be the genetic father.
Mothers have automatic legal rights to a child based on the fact that the identity of the mother is obvious. For fathers, the issue of paternity can be a more difficult process.
Texas law sets forth three ways to establish the paternity of a child: (1) presumption of paternity, (2) acknowledgement of paternity, and (3) court order of paternity.
The first method which I’ll discuss today is the presumption of paternity. The presumption of paternity is the easiest method and requires only that the parents be married at the time of the child’s birth. Texas law presumes that the husband is the father of any child born during that marriage and automatically grants legal parental rights to that husband.
Texas law also sets forth three additional situations where a man is presumed to be the father. First, if the husband and wife are no longer married, but the child was born within 300 days of the divorce. Second, if a man marries the child’s mother after the child’s birth and voluntarily claimed paternity with the Texas Vital Statistics Unit. Finally, a man is presumed the father if he lives continuously with the child for the first two years of the child’s life and represents the child to others as being his child.
In the above situations, a man who is the genetic father of the child doesn’t need to take any further steps to establish his paternity of the child. He automatically enjoys all rights and duties of a parent under Texas law. If the presumed father is not the genetic father then steps must be taken to remove the rights and duties from that person. In my next post, I’ll discuss the two other ways to establish paternity.
Divorce involves a lot of change. One area people going through a divorce need to think about is their will. A will doesn’t change simply because you have divorced. If you have a will that leaves everything to your spouse that doesn’t change unless you redo the will. If 10 years after your divorce you pass away and your will named your ex-spouse as the beneficiary, because you never changed it, then the ex-spouse will still receive the inheritance.
If you don’t already have a will then after a divorce is a great time to set one up. You want to make sure you plan for your children’s future and make provisions on how they will be taken care of if you were to pass away.
Everyone one should have a will, especially if they have children. A will gives you peace of mind because you get to dictate where your hard-earned assets go after you are gone.
One method Texas law uses to enforce child support is motor vehicle registration. In 2016, Texas law began allowing for the denial of motor vehicle registration to parents who aren’t paying his or her child support obligation.
Under the law, anyone who has missed child support payments for six consecutive months will have to resume payments before renewing their vehicle registration. If denied, the parent would have to contact the Texas Attorney General’s Office and get payment plan started to release the hold on their registration. The entire back child support doesn’t have to be paid, but an initial payment plus agreement to a payment plan is required.
The Attorney General’s Office did report an initial uptick in payments when the law went into effect in December 2016, but it is unknown how effective over the long term the law will be. The law only applies to renewals and not new registration and it doesn't apply to cars owned by other people such as a spouse or other family member.
Temporary restraining orders are a topic often asked about by spouses starting a divorce. A temporary restraining order (TRO) are generally used to preserve the status quo of a situation to prevents some act from occurring before a hearing in front of a judge can take place. The TRO generally is granted based on affidavits without a full hearing.
Either spouse can request the TRO to protect either the party or the parties’ property. For example, in situations of domestic violence the TRO can prohibit the other spouse from entering the marital residence. Another situation would be if a husband or wife believes the other spouse will take steps to sell community property or take steps to hide property.
Because the TRO is often based on affidavits and not a hearing, the TRO is effective for no more than 14 days. At that time a hearing must be heard in which the judge can leave the restrictions or make modifications to the TRO.
A TRO can be an effective way to protect a spouse or the property involved in a divorce. A party should discuss the option with their attorney if they feel it is required to maintain the status quo once a divorce is filed.
When one parent fails to comply with a custody or child support order it can be frustrating to the other parent. Failure to pay child support can lead to serious financial consequences for the parent receiving support. Sometimes parents also fail to abide by the child possession periods set forth in the custody order.
A parent in this situation does have options in enforcing that prior order. The parent can file a motion for enforcement. The motion for enforcement sets forth that there’s an order in place and the other parent has failed to follow that order. The motion must specifically set forth the language of the prior order, how that order was violated, and when and how many times the order was violated.
In a motion for enforcement, the judge has a lot of discretion to determine how to enforce the order. The judge can sentence the other parent to jail for 180 days for each violation, the judge could put the parent on probation, or also order attorney fees.
The consequences of not following the court order can be serious and make a difficult situation even worse. If you need help enforcing a child support order or your possession times with your child, it can help to speak with an attorney. An attorney can recommend strategies to fix the situation or if necessary file a motion with the court.
Michael Diaz is a Divorce and Family Law attorney in McKinney, Texas.
Providing effective and efficient solutions to Divorce, Custody, and Family Law clients in McKinney, Frisco, Allen, Plano, Melissa, Princeton, Prosper, Fairview, Celina and throughout Collin County.
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