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Paternity in Texas – What you Need to Know

The determination of paternity is one of the fastest-growing segments of family law. Today, over half of all children in our state are born to single parent households and this number is rising by about 3 to 4 percent annually. Troubling still is that the fastest growing demographic in the United States is single mothers living below the federal poverty guidelines. To protect and prevent single-parent families from succumbing to poverty, the federal government passed legislation requiring states to proactively seek out and adjudicate parents for the sole purpose of paying child support.

In Texas, the Office of the Attorney General is the agency in charge of calculating and collecting child support for unmarried parents. All child support is required to be paid through the State Disbursement Unit (“SDU”) in San Antonio so that the State may report its collections to the federal government and receive federal funding. Many people are surprised to hear that the Office of the Attorney General is only concerned with child support, and does not determine issues of possession and access. Every week, the IV-D (“Four D”) courts in Texas conduct hearings with the Attorney General’s Office to establish paternity, calculate child support, or collect unpaid child support. These hearings are often attended by hundreds of people at a time. Any claims that the parties have about possession and access of the child will not be heard in a IV-D court, but rather will be transferred to a District Court where the attorney general will also become a party to the lawsuit.

How is paternity established in Texas? For the purposes of collecting child support, it can be any of the following:

1. A woman is the presumed mother of the child by virtue of giving birth to the child.
2. A man is the presumed father of the child by virtue of:
   1. Adopting the child, or
   2. Having paternity adjudicated (via DNA testing), or
   3. Voluntarily acknowledging his paternity of the child, or
   4. Was married to the mother when she gave birth to the child.

A common myth in family law is that having a man’s name entered on the child’s birth certificate makes him a “presumed father” of the child because he voluntarily acknowledged his paternity on the birth certificate. This myth is false. The purpose of the voluntary acknowledgment process is to establish paternity without the need of judicial action; therefore the process must meet strict requirements. The only way that a man can be a presumed father by voluntarily acknowledging his paternity is to file a written statement with the Bureau of Vital Statistics asserting that he is the father. This statement must be signed by the mother. Prior to 2011, there were very narrow time limits for when a person could challenge an acknowledgment of paternity if someone believes he is not the parent of the child. In 2011, though, the Texas legislature made important changes to the Texas Family Code allowing for a “wrongful paternity” action if DNA testing establishes, at any time during the child’s life, that a previously presumed parent is not the actual parent.

Another common myth in paternity cases is that paternity laws are only used to establish a parent-child relationship between a father and child. This myth is also false because Texas has passed the Uniform Parentage Act to establish maternity as well as paternity. Although maternity is not disputed in most cases, the same laws apply to women as men. These procedures are frequently used to determine maternity in instances when children are born to same sex unions, assisted reproduction, or families who have travelled from another country.

Today, the most common method of adjudicating paternity is by Court Order. Typically, genetic tests are done after litigation has begun to determine whether the parties are parents to the child. Typically, the Court will specify a time, place, and testing agency for the parties. Genetic tests are admissible in Court if they have a probability of at least 99 percent. After paternity has been established (or denied), the Court will adjudicate conservatorship, possession and access, and child support.

If you are facing difficult issues with paternity or child support, contact an experienced family law attorney at the Wright Firm to answer your questions at www.thewrightlawyers.com  or call us at 972-353-4600.

Informal Agreements Do Not Modify Texas Child Support Orders!

In the Texas Family law context, a common problem is that parents mistakenly believe they can modify their child support order through an informal agreement.  Whether the informal agreement is oral or in writing it will not be effective in modifying the parents’ underlying support order.  In fact, only the court with continuing exclusive jurisdiction over the case can modify court ordered child support.

To illustrate this point, consider the following scenario:

Under a court order, noncustodial parent is ordered to pay custodial parent $400.00 per month for current child support.  Subsequently, noncustodial parent losses his job, or experiences some other financial difficulty, which makes it impossible for him to meet is child support obligation.  In response, custodial parent tells noncustodial parent to pay her only $100.00 per month in child support.  Ten months later the parties get into an argument and their relationship sours.  Custodial parent then demands that noncustodial parent pay her the $3,000.00 in child support he did not pay during the prior ten months.  When he refuses, custodial parent files a motion to enforce.

In this scenario, the agreement that noncustodial parent pay $100.00 per month for child support would not have modified the court ordered support obligation.  Therefore, the noncustodial parent faces several severe consequences.  First, the court may hold him in contempt for failing to pay child support as ordered, which could mean time in the county jail and/or being placed on community supervision.  Also, the noncustodial parent would have $3,000.00 in arrears, and the court would likely enter a judgment against noncustodial parent for those arrears and order additional child support be paid until the judgment is paid in full.  Even if the custodial parent did not file a motion to enforce, the noncustodial parent could be negatively impacted in several different ways, such as having his arrearages reported to credit agencies and having his income tax return intercepted to pay off the arrears.

The noncustodial parent could have avoided these results if he had filed a motion to modify when he lost his job.  Under the Texas Family Code, grounds for modification include: (1) a material and substantial change of circumstances of a child or a person affected by the child support order; or (2) the passage of three years since the last child support order and a difference in monthly payments by either 20% or $100.00 from the child support guidelines.

In short, if you are a party to a child support order, and you want to change the child support amount, do not merely enter into an agreement with the other parent.  Instead, you need to file a motion to modify, asking the court to modify the child support obligation under one of the two grounds mentioned above.

For more information about Texas Family and Divorce law contact The Wright Firm, L.L.P. at 972-353-4600 or visit our website at www.thewrightlawyers.com. We have offices in Dallas, Denton, and Lewisville.  We also have offices by appointment only in Frisco, Plano, and Ft. Worth.  Patrick Wright and Cynthia Palmer are Board Certified in Family Law by The Texas Board of Legal Specialization.  All other lawyers are not board certified unless noted. 

This Blog is a public resource for general information about The Wright Firm, L.L.P. and Texas Law.  Nothing in this Blog should be construed by you as a source of legal advice. You should not rely or act upon the contents of this Blog without seeking advice from your own attorney. Use and access to this Blog or any materials or information provided on this Blog does not create an attorney-client relationship between you and The Wright Firm, L.L.P. or any of its attorneys,  nor is this Blog a substitute for legal advice. Any information submitted by you by The Wright Firm, L.L.P. or its attorneys via this Blog, an email, or any form of social media communication will not be considered an attorney-client communication or otherwise be treated as confidential or privileged in the absence of an executed Engagement Agreement between you and The Wright Firm, L.L.P. or its attorneys.