When families separate, individuals need to be able to adjust and function separately. This can require establishing paternity of a child, parental rights regarding conservatorship (decision making abilities) for the child, possession and access to the child, and support for the child (monthly support payments as well as health insurance and dental insurance).
When parents are unmarried, establishing legal paternity of a child is necessary in order to ensure parental rights and responsibilities. At Law Office of Ian Michael Kuecker, PLLC, we work with both mothers and fathers seeking to prove or disprove the paternity of a child. If paternity is established, we can assist in child support and child custody matters and in working out parenting plans that operate in the child's best interest.
Determining Parentage in Texas
A key component of Texas paternity laws is the classification of the father. In Texas, a father can be classified as:
- Presumed– If a child is born to a married couple, the husband is presumed to be the father.
- Acknowledged– If a man signs an Acknowledgement of Paternity document and it is properly filed with the state, he is the acknowledged father.
- Adjudicated– If a court determines the paternity of a child, the father is considered adjudicated.
- Alleged– If a man is suspected of fathering the child but paternity has yet to be proven and the child was born out of wedlock, the father is alleged.
A father who wishes to challenge the paternity of a child will have different deadlines by which he must do so according to how he is classified. Furthermore, a Court may require a father challenging paternity to prove different circumstances depending on whether the father is presumed, acknowledged, or adjudicated.
The process to establish paternity involves several steps and may involve voluntary DNA testing or a more rigorous court-ordered procedure. We work with mothers who wish to compel genetic testing of alleged fathers as well as fathers who wish to compel genetic testing of a child. If DNA testing proves the paternity of the child, we work with clients to make arrangements for child support, custody, and visitation.
Under the Texas Family Code, "Parent" means the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father. Except as provided by Subsection (b), the term does not include a parent as to whom the parent-child relationship has been terminated.
A man is presumed to be the father of a child if:
- he is married to the mother of the child and the child is born during the marriage;
- he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
- he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
- he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:
- the assertion is in a record filed with the vital statistics unit;
- he is voluntarily named as the child's father on the child's birth certificate; or
- he promised in a record to support the child as his own; or
- during the first two years of the child's life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.
A presumption of paternity established under this section may be rebutted only by:
- an adjudication under Subchapter G; or
- the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 305.
Notice that nowhere in the definition of “parent” is there any reference to an alleged father. Unless a man is a presumed, acknowledged, or adjudicated father of a child; then he is not legally considered a parent of the child. This creates a situation where the alleged father of the child has no legal rights concerning the child unless/until steps are taken to establish the parent-child relationship.
Additionally, the mother-child relationship is established between a woman and a child by:
- the woman giving birth to the child;
- an adjudication of the woman's maternity; or
- the adoption of the child by the woman.
Further, the father-child relationship is established between a man and a child by:
- an unrebutted presumption of the man's paternity of the child under Section 204 of the Texas Family Code;
- an effective acknowledgment of paternity by the man under Subchapter D, unless the acknowledgment has been rescinded or successfully challenged;
- an adjudication of the man's paternity;
- the adoption of the child by the man; or
- the man's consenting to assisted reproduction by his wife under Subchapter H, which resulted in the birth of the child.
When the parents are no longer together, and there is a child at stake, the first step to moving forward is contacting our firm in order to determine how to secure your parental rights.
In Texas, custody is referred to as conservatorship. Joint legal custody is referred to as Joint Managing Conservatorship and means that both parents share in the major decision-making rights, privileges, duties and powers held by parents. The best interest of the child is the primary consideration in determining custody. It is Texas public policy to assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; provide children with safe, stable and nonviolent environments; and encourage parents to share in the rights and duties of raising their children after parents have separated or divorced.
Rights & Duties of Conservators include:
Sec. 153.073. RIGHTS OF PARENT AT ALL TIMES. (a) Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:
- to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
- to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
- of access to medical, dental, psychological, and educational records of the child;
- to consult with a physician, dentist, or psychologist of the child;
- to consult with school officials concerning the child's welfare and educational status, including school activities;
- to attend school activities, including school lunches, performances, and field trips;
- to be designated on the child's records as a person to be notified in case of an emergency;
- to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
- to manage the estate of the child to the extent the estate has been created by the parent or the parent's family.
Sec. 153.074. RIGHTS AND DUTIES DURING PERIOD OF POSSESSION. Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:
- the duty of care, control, protection, and reasonable discipline of the child;
- the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
- the right to consent for the child to medical and dental care not involving an invasive procedure; and
- the right to direct the moral and religious training of the child.
Sec. 153.132. RIGHTS AND DUTIES OF PARENT APPOINTED SOLE MANAGING CONSERVATOR. Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights:
- the right to designate the primary residence of the child;
- the right to consent to medical, dental, and surgical treatment involving invasive procedures;
- the right to consent to psychiatric and psychological treatment;
- the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
- the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- the right to consent to marriage and to enlistment in the armed forces of the United States;
- the right to make decisions concerning the child's education;
- the right to the services and earnings of the child;
- except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government; and
- the right to:
- apply for a passport for the child;
- renew the child's passport; and
- maintain possession of the child's passport.
Under the Texas Family Code, there is a rebuttable presumption that appointing both parents of the child as Joint Managing Conservators in in the best interest of the child. If so done, the rights and duties detailed in Sec. 153.132 above are generally allocated to each of the parent conservators; although even with Joint Managing Conservators these rights can still be exclusively awarded to only one parent - such as the right to designate the primary residence of the child and the right to receive and give receipt of child support. Further, if one parent is awarded the exclusive right to designate the primary residence of the child; this right may be subject to a geographic restriction (requiring the child's residence being maintained within a specific geographic area).
The ability to access information and make decisions concerning your child are paramount in the parent-child relationship. Please contact our firm in order to find out more about these important issues.
Establishing a Possession & Access Schedule
If a child's parents do not live together, the state of Texas presumes that both parents have the responsibility to provide financial support and the right to custody or visitation. Though child support and visitation may seem like two sides of the same coin, they are separate issues. If one parent withholds child support, this does not give the other parent the right to withhold visitation — and vice versa.
It is a common misconception that because Texas presumes that parents should be named joint managing conservators of their children, that possession of the children is split equally between the parents.
The Texas Family Code refers to custody as “Conservatorship” and visitation as “Possession and Access”, and makes it very clear that joint managing conservatorship does not require the Court to award equal or nearly equal periods of physical possession of and access to the children to each of the conservators.
The Texas Family Code further lays out a rebuttable presumption that the standard possession order provides the reasonable minimum possession of a child for a parent, and that the standard possession order is in the best interest of the child.
A 50/50 possession order only works with parents who reside relatively close to each other, such that the ability to get the kids to and from school is not problematic. That being said, it can be very beneficial in a myriad of situations for both parent and child.
In situations where domestic violence has occurred, the likelihood of obtaining a 50/50 possession schedule is extremely limited. The Texas Family Code prohibits the appointment of joint managing conservators if there is a finding of past or present child neglect, or physical or sexual abuse directed against the other parent, a spouse, or a child. The code further lays out a rebuttable presumption that the appointment of the abusive or neglectful parent as sole managing conservator or joint managing conservator with the right to determine the primary residence of the child is not in the child's best interest.
The public policy of the state of Texas is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.
The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
The guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator who does not have the right to establish the primary domicile for the children. It is the policy of this state to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child. It is preferable for all children in a family to be together during periods of possession. The standard possession order is designed to apply to a child three years of age or older.
The court may render an order for periods of possession of a child that vary from the standard possession order based on the agreement of the parties or based on its own volition.
In ordering the terms of possession of a child under an order other than a standard possession order, the court shall be guided by the guidelines established by the standard possession order and may consider: (a) the age, developmental status, circumstances, needs, and best interest of the child; (b) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (c) any other relevant factor.
Unless both parents come up with a schedule together, the court will make a decision for you and determine the schedule for you.
Customized possession schedules require special attention to the enforceability of the schedule. The underlying order must set forth the terms of compliance in clear, specific and unambiguous terms so that the person charged with obeying the order will readily know exactly what duties and obligations are imposed upon him or her. A court order is insufficient to support a judgment of contempt if its interpretation requires inferences or conclusions about which reasonable persons might differ.
Establishing Child Support
In Texas, both parents are held responsible for financially supporting their child until that child turns 18 or graduates from high school; whichever comes later.
Child support is based on guidelines for net income and is revised every six years. The current standards for child support are:
- Based on a net of up to $9,200.00 per month
- 20% for one child
- 25% for two children
- 30% for three children
- 35% for four children
- 40% for five children
Many factors can affect child support, especially since the judge has the discretion to raise or lower the amount of support suggested in the child support guidelines. It may be taken into consideration if the noncustodial parent has children in another household. The specific needs of the children who are in the suit is a major factor that may be taken into consideration. This includes not only the basic needs like clothing, food, and shelter, but also health and medical care, extracurricular activities, counseling, tutoring, and other needs that may arise. Child support may also be extended beyond high school graduation or the child's 18th birthday if the child has mental or physical disabilities that would warrant the need for extended support.
The state attorney general is responsible for the establishment, enforcement, and modification of child support orders. All child support payments must go through the office of the attorney general. Failure to pay child support by the noncustodial parent can result in wage withholding, tax refund forfeiture, property liens, license suspensions, and even being held in contempt of court and jailed.