San Antonio Attorneys Serving Bexar County & South Texas
The Law Offices of
Steven C. Benke
4018 Vance Jackson Rd. San Antonio, TX 78213
210-308-0004
3 4 8 - 6 7 2 3
1-800-DIVORCE
Email: BenkeLaw@sbcglobal.net
BOARD CERTIFIED - FAMILY LAW
TEXAS BOARD OF LEGAL SPECIALIZATION
QUESTIONS ABOUT PATERNITY, ADOPTION & TERMINATION OF PARENTAL RIGHTS
What is a parentage suit?
This is a lawsuit to determine a legal biological parent.
Who is a presumed father?
The following is an oversimplification of a very complex area of law. Please consult an attorney. A presumed father is a man who is recognized as the father of a child until that status is either rebutted or confirmed in a later court proceeding. A man is a presumed father if he is married to the mother of the child at the time of the child's birth, or was married to the mother within 301 days of the child's birth. A man is also a presumed father if he married the mother after the birth of the child and
(1) voluntarily asserted his paternity of the child and that assertion is filed with the bureau of vital statistics,
(2) he is voluntarily named as the child's father on the birth certificate,
(3) he promised in writing to support the child as his own;
(4) during the first two years of the child's life, continuously resided in the household wit the child and represented to
others that the child was his own.
Who is an acknowledged father?
An acknowledged father is a man claiming to be the father of a child who, along with the mother of the child, has signed an acknowledgement of paternity. An acknowledgement of paternity is a form that is signed by the mother and the man claiming to be the father, under penalty of perjury. The acknowledgement is filed with the Bureau of Vital Statistics. Once filed, an acknowledgement has the same effect as a determination of parentage by a court. If the child has a presumed father who is not the man claiming to be the father of the child, the presumed father must also sign the acknowledgement.
Who is the adjudicated father?
An adjudicated father is a man who has been found to be the father of a child by a court.
Under what circumstances is a parentage suit filed?
A parentage suit is filed when there is a need or a desire to legally determine the biological parent of the child.
Who may file a parentage suit?
Generally the following people may file: 1. the mother; 2. the man who wants to determine his parentage; 3. a relative of the child's mother or alleged father if that parent is deceased; 4. the child (either individually or through a representative); 5. a government agency; or 6. any person related to the mother of the child (within the second degree of consanguinity) if the mother is deceased. You should consult an attorney for more clarification on this issue.
When can you file?
A suit to determine the parentage of a child may always be brought before the birth of the child. If the child does not have a presumed, acknowledged or adjudicated father, the suit to determine parentage may be filed at any time, including after the child becomes an adult.
If the child has a presumed father, a suit to determine parentage must be brought before the child's fourth birthday. However, if the court finds that the presumed father and the mother did not live together or engage in sexual intercourse with each other during the probable time of conception and the presumed father never openly treated the child as his own, a suit to determine parentage may be brought at any time.
If the child has an acknowledged or adjudicated father, a man who did not sign the acknowledgment or who was not a party to the court proceedings may file a suit to determine parentage of a child within four years of the acknowledgment or adjudication.
Why is a parentage suit filed?
A parentage suit filed to establish a child's legal relationship with a biological parent and to establish child support, visitation and custody of the child. In certain cases, the court may also reimburse the biological mother for pre-natal and post-natal expenses related to the child's birth.
What happens after a parentage suit is filed?
Unless the parties agree on parentage, the court will order the child and the parties to submit to genetic testing. Genetic testing can be of blood, buccal cells, bone, hair or other body tissue, but it is now usually done by a cheek-swab. The court may not order genetic testing of a child before it is born.
Who pays for the blood tests?
If the parties cannot agree, the court will decide. In most cases, the costs will be shared equally by the parties.
What happens after the genetic tests?
The lab conducting the test will prepare a report for the court. If the test shows that the tested man is not the parent, the court will dismiss the case. If the test shows that there is a 99% probability that the tested man is the parent, the court will find the man to be the biological parent of the child unless other testing excludes the man as the father, or identifies another man as the possible father. Once the man is found to be the father by the court, the court will decide custody, visitation, and support if the parties cannot agree.
Is the child's name affected?<>
If the father requests, the court may order that the name of the child be changed to the father's last name. However,in some circumstances, the child will retain the mother's name
What if the biological father does not want to have anything to do with the child and wants to terminate his rights to the child?
A proceeding for the termination of the father's rights may be filed. Whether this is granted will depend on the court's finding that is in the best interest of the child.
Can I settle my case out of court?
Yes. The case can be settled between the parties and through their attorneys or through a process called mediation.
What if the biological father wants to voluntarily admit he is the father of the child?
A man may voluntarily admit he is the father of the child by signing an acknowledgment of paternity, with the mother, or by filing a suit to determine parentage and admitting he is the father.
How does an unmarried man protect his rights as a father?
It is presumed that a man who has sexual intercourse with a woman should know that the act can result in a pregnancy. Therefore, to protect the parental rights of a father who is not the presumed biological father, has not been found to be the biological father of a child by a court order, or has not sighed an acknowledgment of paternity, the man should register a claim of parentage with the Bureau of Vital Statistics. These forms are found in hospitals, birthing centers, the Bexar County Clerk's office, and other locations. The registration should occur prior to the child's birth and may not be filed more than 31 days after the birth of the child. If the registration is not filed, the man must sign an acknowledgment or file a suit to determine parentage.
