Paternity/Suit to Establish the Parent-Child Relationship

What is a paternity suit and who can file one?

Over the years, the Texas Family Code has developed extensive provisions regarding all aspects of parentage. Generally, a paternity suit (or a suit to establish the parent-child relationship) is a legal proceeding filed by a person to establish another person as the lawful parent of a child. A paternity suit may be filed by the child in question, the mother of the child, a man alleged to be the father of the child, the State child support enforcement agency, an authorized adoption agency, certain relatives of a deceased mother, or an authorized representative of the child.

How is paternity of a child determined or established?

          Paternity of a child can be determined by genetic (DNA) testing or may be presumed under a number of other circumstances. For example, a man is presumed to be the father of a child who is born while that man is married to the mother of the child or born within 301 days of the end of the marriage to the mother. Or, the mother of a child and the man claiming to be the father may sign a written document called an “acknowledgement of paternity” which must meet a number of requirements per the Texas Family Code to be valid and binding.

          A few other examples that give rise to the presumption of paternity are: (1) the marriage of the mother of a child to the man claimed to be the father; (2) the adoption of the child by the man claimed to be the father; or (3) the man being voluntarily named as the child’s father on the birth certificate.

What can be done if a person denies paternity of a child?

          If a person, whether the mother or the alleged father, denies paternity of a child, the preferred method of determining whether or not a biological relationship exists is genetic or DNA testing. Such testing can be ordered by a court if a paternity suit or Suit Establishing the Parent-Child Relationship is pending or can be accomplished by the parties themselves by submitting their own genetic samples at genetic testing labs throughout most cities. However, genetic testing alone will not establish a legal parent-child relationship between the child and the biological parent.

What if a child is born during a marriage but is not a child of the husband of the marriage?

          The presumption that a child born during a marriage is the child of the husband of the marriage can be rebutted or challenged. If both spouses agree that the husband is not the father, the court’s orders in a divorce proceeding should include a provision addressing the situation. If there is a dispute about the parentage of a child, the husband, the child, and the mother should either voluntarily submit for genetic testing or the husband should ask the court to order such testing if a divorce or other lawsuit seeking to establish the husband as the father is pending.

If the parents of a child are not married when the child is born, but later get married, is the child considered legitimate or illegitimate?

Generally, a child born in such a situation would be considered legitimate. Of course, a few requirements must be met under the Texas Family Code for the husband to be “presumed” to be the father.

What happens if the parents of a child are not married and end their relationship?

          On occasion, the parents decide that the best interest of the child is the most important consideration and such parents cooperate with each other regarding financially supporting the child, possession of and access to the child, and other matters that affect the child. That situation is more the exception than the rule. In most situations, the parents either: (1) do nothing until an event or need arises that requires a paternity suit to be filed by one or both of the parents, (2) one or both of the parents file a contested paternity suit so that there are specific court orders for child support, possession of and access to the child, and other child-related orders, or (3) in anticipation of or after a paternity suit is filed, the parents reach agreements for the terms of the court orders without having a final trial or hearing.

What can I do if I am the mother/father of a child and the other parent is refusing to let me have a relationship or contact with the child?

          The basic answer is to consult with an attorney who may advise you to file a paternity suit to have specific, enforceable orders entered regarding the child or the attorney may advise you to file a lawsuit to enforce orders you may already have in place regarding the child.

What can I do if the mother/father of my child has not been in the child’s life and has recently appeared and wants “rights”?

          If that parent has court-ordered rights, consult with an attorney to determine if there is a reason for you to seek emergency orders restricting or limiting the other parent’s access to the child. If there are no court orders regarding the child, consult with an attorney regarding what rights each parent has and what actions can be taken to protect the best interest of the child.

What are a Standard Possession Order and an Expanded Standard Possession Order?

What is known as a “Standard Possession Order” is generally when the parent who does not have the right to establish the primary residence of the child is awarded the first, third, and fifth weekend of each month, beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on Sunday, along with a few hours on Thursdays during the school term, extended time in the summer, and alternating holiday time. The start times of the possession schedule can also begin at the time school recesses on the particular days (usually Thursdays and 1^st, 3^rd, and 5^th Fridays).

An “Expanded” or “Extended” Standard Possession Order relates to the addition of mid-week overnight possession (usually Thursday) and Sunday overnight possession whereby the possession ends when school begins the following morning (Friday or Monday, as applicable). An “Expanded” or “Extended” schedule is the choice of the parent who does not have the “primary possession” of the child, unless the court finds that such an expansion is not in the child’s best interest. Factors the court considers to deny such an election or choice are the distance to the child’s school from that parent’s home, any homework issues, tardy issues, travel time, the parent’s work schedule, etc.

Further, the times and lengths of a possession schedule depend upon the distance between the parents’ residences – usually 100 miles or more and 100 miles or less. Certain overnight possession periods are limited or removed when the parents are more than 100 miles away from each other and additional summer days and school breaks are ordered to the distant parent.

Is a “standard possession order” required in all cases?

A standard possession order is presumed to be in the best interest of the child and presumed to provide reasonable minimum possession of a child for a parent with whom the child does not primarily reside. However, if such a standard possession order is inappropriate or unworkable or the child is under the age of 3, the court is required to consider the age, developmental status, circumstances, needs, and best interest of the child, the circumstances of the parents, and any other “relevant factor” when ordering possession and access that varies from a standard possession order.

If I started a paternity (suit to establish the parent-child relationship) through the Attorney General’s Office, do they represent me or my child?

          They do not represent you or your child and will usually make that abundantly clear. They represent the interests of the State of Texas and cannot technically advise you as to what is best for you or your child.

          Can I hire my own attorney?

          You can and you should. Such agencies tend to take a “one-size fits all” approach and do not have the interest, authority, resources, or training to deal with any aspects of a paternity suit aside from child support and medical support.

Is child support calculated the same way in a paternity case as in a divorce case?

Yes, the child support guidelines in the Texas Family Code apply the same way in paternity and divorce cases.

If the father of the child or I (the biological father) do not wish to have parental rights, what can be done?

          You can relinquish or give up your parental rights in a formal, written document. However, giving up your parental rights may not relieve you from a child support obligation and the court is not required to find that the termination of your parental rights is in the best interest of the child. This is usually not a decision to be made lightly and you should consult with an attorney regarding your options.

If a child is born to parents who are not married, does that child have the same rights under Texas law?

Yes. A child born to parents who are not married to each other has the same rights as a child born during a marriage.