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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.
As children get older and a parent’s financial situation changes it may become necessary to seek a modification of the prior support order. In order to change the order, a party has to file an Petition to Modify the Parent-Child Relationship which opens back up the prior child support case.
Texas law requires that in order to change the prior order, the party seeking the change must show:
1. that the circumstances have materially and substantially changed, or
2. at least three years have based since the prior order and the new guideline child support would differ from the last order by at least 20% or $100.
If the parent paying support has changed jobs and his or her income has gone up or down the situation may warrant a new calculation to determine the appropriate support amount. Child support is also based on how many children the paying parent has, so if that parent has a new child the percentage of income going to child support would go down.
It is important to remember that only the judge can change the child support amount. Just because you have a new child or your income has gone down doesn’t mean you can start paying a lower amount. The parent must file a request to modify with the court and have it approved by the judge before it is effective.
If you or the other parent’s financial situation has changed it may be beneficial to speak with an attorney and see if a modification would be possible and what change in support you might expect. Then you can decide if it is in your child’s best interest to seek a child support change from the court.
There are two new bills currently in the Texas Legislature which are aimed at making getting a divorce in Texas more difficult.
Texas House Bill 93 would remove the ability to get a divorce based on “insupportability.” Insupportability is the basis for most divorces and allows party to divorce without assigning fault. Instead, a spouse would have to prove the other party was at fault for the breakup of the marriage based on things such as adultery, abuse, abandonment, etc.
Texas House Bill 65 would increase the divorce waiting period in Texas from 60 days to 180 days if the couple has a child. Even agreed or uncontested matters would require the 180 days waiting period.
Both bills aim to make getting a divorce more difficult but would come with significant issues. Forcing couples to prove fault means the spouses are going to spend much more in attorney fees to prove his or her case. Proving fault would also mean that more cases would go to trial which backs up the family court system and means the divorce process would take much longer.
Additionally, the waiting period also means more attorney fees because the attorneys are on the case longer. The waiting period would delay a person’s ability to move on with their life and increase the uncertainty that comes with not having a final resolution.
en a parent gets enters into a new marriage and the other parent is no longer involved in the child’s life the topic of a stepparent adoption sometimes comes up. The stepparent and child may already be living a parent-child relationship and the parties may want to formalize that relationship.
A stepchild adoption in Texas follows the same general procedure as a regular adoption. A child can only have two parents, so first there must be a termination of one of the biological parent’s rights. The termination can be based on things such as abandonment, failure to support or if the parent signs a Voluntary Affidavit of Relinquishment of Rights. Second, the adoption process is completed which includes the filing of the petition to adopt, criminal background check, and completion of a social study.
When handling a stepparent adoption, the parent who is no longer in the picture may be willing to sign the affidavit of relinquishment which can speed up the process of termination. Additionally, the process of a social study can be done quicker because the child is already living with the stepparent. The person performing the social study can get a pretty clear view of the relationship between the parties and how the child does in the stepparent’s home.
Parties should be aware that an adoption is always a serious and important decision. Parents should speak with an attorney to make sure that they understand all of the legal consequences of both the termination of parental rights and the adoption itself.
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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