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Barrister
Barrister, Lawyer
Category: Family Law
Satisfied Customers: 22647
Experience:  Attorney with 14 years experience
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My childs father does not have his name on the birth certificate,

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My child's father does not have his name on the birth certificate, has never met his daughter, has has not paid child support, and signed an affidavit relinquishing his rights. A motion was filed, but never followed up with it, not wanting to have any contact with him and go through court proceedings if not necessary. I heard that if uncontested, I will automatically have sole custody after he has gone 3 years without paying child support. Is this true? Is there a point, without going to court, that I do not need to worry about him ever coming back to try to be a part of her life? He (my daughter's father) is under the radar, and I do not have an address and/or phone number for him. We have not had any contact in over a year, and my daughter will be two in December.
The case will be dismissed for want of prosecution on November 19th, and I am wondering if I should file a motion to retain, or just let it go since he is out of the picture.
Submitted: 3 years ago.
Category: Family Law
Expert:  Barrister replied 3 years ago.

Hello,

 

Was he ever legally determined to be the child's biological father either through DNA test or through voluntary acknowledgment of paternity signed by both of you?

.

The reason I am asking is that he couldn't relinquish any rights if he never legally had any...

.

Also what was the motion/petition for and who filed it?

.

.

thanks

Lawpro

 

 

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Customer: replied 3 years ago.

No DNA test

No acknowledgement of paternity signed by both of us.

He did sign a "Father's Affidavit for Voluntary Relinquishment of Parental Rights," which was notarized. This is the paper which was filed, but then never acted upon. I am a single mom, and was scared that I would not be given custody without someone willing to adopt my daughter.

Expert:  Barrister replied 3 years ago.

Ok, at this point then he has neither legal rights nor obligations to the child. He wouldn't be able to have any type of visitatation or custody, but also woudn't have to pay some child support.

.

Until he is determined to be the legal father of the child, then he neither has nor can give up any rights.

 

So as of right now, you are the only legal parent the child has and obviously would be the sold custodian and guardian.

.

However, In California, there is no statute of limitations for establishing paternity. So he could come in at any point in time in the future and file a paternity suit to legally determine if he is the child's biological father. But if he does, he will likely get hit with not only current child support, but also back child support retroactive back to the child's birth.

.

So let the motion die of its own accord and keep your fingers crossed he doesn't come back around wanting to establish paternity.

.

.

thanks

Lawpro

 

 

 

Customer: replied 3 years ago.
Did his signing an affidavit relinquishing his paternal rights not acknowledge that he is in fact the father? Is there a statute of limitations on paternity in the state of Texas? Is there a point, after a # XXXXX years of no contact/support where all rights are autatically lost?
Expert:  Barrister replied 3 years ago.

That would be the question...if he just signed a relinquishment without having legally acknowledged his paternal rights, it wouldn't be effective. And unless you are married at the time of the child's birth, he is on the birth certificate, you and he both sign a voluntary acknowledgment of paternity, or he has a DNA test done, then he wouldn't be presumed to be the legal father of the child.

.

 

Texas Family Code

§ 160.204. PRESUMPTION OF PATERNITY.
(a) A man is presumed to be the father of a child if:

 

(1) he is married to the mother of the child and the child is born during the marriage;

(2) 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;

(3) 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;

(4) 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:

 

(A) the assertion is in a record filed with the bureau of vital statistics;

(B) he is voluntarily named as the child 's father on the child 's birth certificate; or

(C) he promised in a record to support the child as his own; or

.

(5) 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.

 

.

§ 160.607. TIME LIMITATION: CHILD HAVING PRESUMED FATHER.

(a) Except as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.

.

.

So since he is not a "presumed father" he wouldn't fall under the statute of limitations in TX and this statute would apply:

.

§ 160.606. NO TIME LIMITATION: CHILD HAVING NO PRESUMED, ACKNOWLEDGED, OR ADJUDICATED FATHER. A proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated father may be commenced at any time, including after the date:
(1) the child becomes an adult; or
(2) an earlier proceeding to adjudicate paternity has been dismissed based on the application of a statute of limitation then in effect.
.

.

So the long and short of it is that since he has not been established as the legal father, he has no rights. But there is also no limitation on when he could appear and file a paternity suit to ask for them.

.

.

.thanks

Lawpro

 

 

 

Customer: replied 3 years ago.
So if I want piece of mind that he will not come ouy of the woodwork and ask for custody later on, I should file a motion to retain. Then he would ne contscted, paternity would have to be edtablished, amd then I would have to see him in court, where a judge wouldost likely NOT give me sole custody since I a single mom. Does tjat soumd about right? Might be best to leave as is. What about in the future though, if I do marry someone and they want to adoptu daughter? What happens then regarding her real father?
Expert:  Barrister replied 3 years ago.

Well, you can file your own paternity action, have him established as the legal father and then have him sign a voluntary termination of parental rights. That way he would be giving up any legal rights to the child. But yes, if he is established as the legal father, he would have the right to seek some type of joint custody. It is unlikely that he could get full custody of the child unless the court somehow found you to be an unfit mother due to abuse or neglect. Being a single mom would not be grounds for him to get full custody.

,

Once he has signed the TPR, if you get married later, your spouse could legally adopt the child

.

But if he has signed the petition to terminate his righst, he may think that he has legally done so already and you may not have anything to worry about. But until you go through the full process to legally terminate his rights, he could legally reappear and pursue a paternity action.

.

So it might be best to leave it alone for a while until you were sure he was gone, then file a termination of parental rights action and see if you could get it done uncontested if they can't find him.

.

.

thanks

LAwpro

 

 

 

Barrister, Lawyer
Category: Family Law
Satisfied Customers: 22647
Experience: Attorney with 14 years experience
Barrister and 7 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.
Thanks for your help! :)
Expert:  Barrister replied 3 years ago.

You are very welcome.

 

thanks

Lawpro

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