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Roger
Roger, Attorney
Category: Family Law
Satisfied Customers: 26014
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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If you are the father to a newly born child but was never married

Customer Question

If you are the father to a newly born child but was never married to the mother, do you have any legal rights? How does this situation differ from a divorce case regarding custody, child support requirements, grandparental rights, visitation requirments, etc?
Submitted: 2 years ago.
Category: Family Law
Expert:  Roger replied 2 years ago.

Hi - my name is XXXXX XXXXX X'm a Family Law litigation attorney here to assist you.

 

Yes, a father - married or not - has the same rights to the child as the mother does. However, if the parents are not married, the mother can allege that he's not the father and keep the child from him until the father files a petition to establish paternity and gets a DNA test through a court order to establish that he's the father.

 

Also, the court will establish custody, visitation and child support for the child. This is really no different than a divorce as it pertains to child custody and support. The same rules apply whether there's a divorce proceeding or not.

 

Grandparents' rights are not absolute. In fact, courts generally do not award any such rights as they allow the parents of the children to decide when they see grandparents, etc. Grandparents rights are usually only a consideration if a parent of the child dies or loses parental rights. At that point, the court will usually grant grandparents rights to make sure the grandchild maintains a relationship with the grandparents.

Customer: replied 2 years ago.
The nuance in this situation is that the father does not want the child, and has made that very clear throughout the pregnancy and after birth. The mother, in an act of despiration, went to the father's mother (who is very wealthy and is extremely sympathetic to a girl in the mother's situation as the grandmother was in the same one with her own child). The mother does not have the means to sue the father, but the grandmother (father's mother) very much does. 1) can the father's mother supply funds to the child's mother to sue the father 2) what legal rights does the grandmother have in this situation? Please let me know if you need more information.
Expert:  Roger replied 2 years ago.

1) Yes. There's nothing illegal about that.

 

2) In 2005, the Texas state legislature changed its law on grandparents' rights to make it more difficult for grandparents to have access over a parent's objection. The law now says that a grandparent can get visitation only if denial of access would "significantly impair the child's physical health or emotional well-being." The word "significantly" sets an extremely high standard for grandparents to meet. It's not enough to claim that the child and grandparent would be sad if there was no contact; it must be show that a significant impact would occur.

 

In this case, the grandparent should have no problem seeing the child if the father's mother is close to the child's mother. She could see the child through the mother any time she wants.

Customer: replied 2 years ago.
The grandmother has established the threat of a lawsuite, but no legal action has yet occurred - just the threat of. Under this threat she has coerced her son (the child's father) to agree to visiting the child, and potentially future care. His opinion is that if he agrees he will be able to placate her such that she will not sue. I understand this is all behavior by choice, even if it is under threat, but does the establishment of threat to change behavior have any direct reprocussions? If she does decide to sue - what are the consequences for the behavior that has already occured?

Expert:  Roger replied 2 years ago.
Legally, a threat of action is not illegal and doesn't have any consequence.

However, if this matter goes to court, the fact that she's tried to manipulate can be testified to, and that could cause the judge to form a negative opinion about her.
Customer: replied 2 years ago.
Can the father voluntarily terminate parental rights? He is in the state of Texas if that helps. If he does so, can he still be sued for child support or care/visitation (he does not want the visitation - the grandmother will try to force this to occur).
Expert:  Roger replied 2 years ago.
If the mother files a petition to terminate his parental rights, he can sign a waiver and agree to her request.

This will prohibit him from having a right to custody or visitation with the child, but he would still be required to pay child support.

The only way his child support obligation can be terminated is if the child is adopted.
Customer: replied 2 years ago.
This can only be initiated by the mother though, not by the father?
Expert:  Roger replied 2 years ago.
The father could file this as well, but it is usually initiated by the mother.
Customer: replied 2 years ago.
Thank you so much for your time, especially on a Saturday.

I just have a few more questions:

1. What is the statute code the father can reference in order to terminate parental rights? What is the legal process he must follow in order for this to occur? Does this protect the father from the mother, or grandmother, from suing him further?

2. What is the standard percentage of income used to calculate child support? Is it calculated on gross income or adjusted income? Does it vary based on tax bracket?

3. The mother is married to another man, and has been since the time of pregnancy, and is still married to him after the birth of the child. How does this influence the case?

4. A $15 over the counter paternity test was used by the grandmother (father's mother) to help her establish paternity - with the desire for the father of the infant to be her own son rather than the husband of the mother. It was purchased over the internet. Does this type of test hold up in the court of law? I am unaware of the details of the marriage between the mother of the infant and her husband. I also do not know if the husband has already taken a paternity test.
Expert:  Roger replied 2 years ago.
1. Chapter 161.005 of the Texas Code: http://law.onecle.com/texas/family/chapter161.html

2. Child support is based on the parent's net income. There are several calculators online like this one: http://www.alllaw.com/calculators/childsupport/Texas/

3. The fact that the mother is married is immaterial in terms of paternity, child support, etc. The mother's husband has no legal responsibility for the child.

4. No, the paternity test would not be admissible in court. Paternity would have to be established by a test ordered by the judge and conducted as the court requires.
Roger, Attorney
Category: Family Law
Satisfied Customers: 26014
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 5 other Family Law Specialists are ready to help you
Customer: replied 2 years ago.
Thank you for your time and assistance. I really appreciate the information you have provided me.
Expert:  Roger replied 2 years ago.
Sure.

Please let me know if you have any additional questions.

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