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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11339
Experience:  Licensed Texas General Practice Attorney
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I never placed my sons father (never married) on the birth

Resolved Question:

I never placed my son's father (never married) on the birth certificate for fear of him trying to take him out of state without my consent, and I always told him that he could be on there just that it needed to happen at the same time as custody, visitation and child support were all agreed upon. My son is almost one and he has yet to take any legal action for the matter. I am now dating a military officer, and I need to know, when we do go to custody court how this will affect my ability to relocate with my child if I were to marry to this man.
Submitted: 10 months ago.
Category: Family Law
Expert:  ScottyMacEsq replied 10 months ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Since you have not placed him on the birth certificate, and assuming he has not signed an "acknowledgement of paternity", that means that he does not have presumptive paternity rights. In Texas, a presumptive father is someone who has signed an acknowledgement of paternity, or agreed to have a name on the certificate, or was married to the mother at the time of conception, etc... and certain legal rights are present there. Now he could still be named the father of the child, and would still need to be given notice of any custody action and notice that you were seeking to relocate.

ScottyMacEsq :

The fact that you have not put this on the certificate certainly won't hurt your case. Rather, The Courts’ guiding legal principle in deciding who should be the custodial parent is the child’s “best interests.” What exactly is in the child’s best interest is not particularly well defined, but Texas Courts have provided guidance. What the Court Considers in Deciding Child Custody: The “Holley Factors”
In one Texas divorce case, Nanci Holley v. XXXXX XXXXX, the court came up with a non-exclusive list of factors to look at in determining the best interests of the child. The Court found some pertinent factors in deciding what is in the best interests of children when parents are divorcing include:



  • the desires of the child;

  • the emotional and physical needs of the child now and in the future;

  • the emotional and physical danger (of one parent) to the child now and in the future;

  • the parental abilities of the individuals seeking custody;

  • the programs available to assist these individuals to promote the best interest of the child;

  • the plans for the child by these individuals;

  • the stability of both parties homes;

  • the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and

  • any excuse for the acts or omissions of the parent.



Sometimes these factors are referred to “Holley” factors. Other factors which a Court will consider include:



  • which parent enables and promotes a friendly parenting environment for the other parent,

  • who has been making the educational decisions of the children,

  • who has been making any medical related decisions,

  • who generally prepares for and feeds the children,

  • which parent regularly meets with the teachers if the child is school age,

  • has one parent been alienating the child from the other parent,

  • who gets the child up in the morning and puts him/her to bed at night, and

  • who participated in extracurricular activities,

  • court appointed (or retained) child custody experts recommendations.


 

ScottyMacEsq :

The court is going to weigh all the factors and make a determination of whom would be the best custodial parent in the best interests of the child.

ScottyMacEsq :

Now practically speaking, unless you have some serious skeletons in the closet, etc... then the judge is not going to remove an infant from the mother. Only if the other factors are so serious as to overrule the (unspoken) presumption that an infant belongs with the mother could that be a concern.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

ScottyMacEsq :

Did you have any other questions before you rate this answer?

Customer:

I do not really see how that addresses my issue of relocation.I have no doubt that when the time comes I will be the custodial parent. Also anybody with access to google can find out the court works in "the best interest of the child." What I need to know is how this will affect my ability to relocate with my child.

ScottyMacEsq :

It won't affect it any more than if he were on the birth certificate, if that's what you mean. Essentially these factors are considered in a relocation request (because if denied and you relocate anyway, custody would shift to the other parent).

ScottyMacEsq :

So this is what is considered. These are the very factors that would be considered.

Customer:

well what are the guidelines generally speaking for relocation

ScottyMacEsq :

Now this is supposing that it's a contested matter.

ScottyMacEsq :

I'm not sure that I understand your question. That is, the guidelines for an approval of a relocation request are going to be the same as a custody request. That is, the best interests of the child will be considered. Now in a relocation situation, this is going to include how "uprooting" the child will affect that child, where the child is moving to, ability for the other parent and any involved family members to have visitation, etc...

ScottyMacEsq :

But again, the main consideration is the best interests of the child.

ScottyMacEsq :

When there's a younger child, the "roots" are not "deep".

Customer:

he's not 1 yet

ScottyMacEsq :

In other words, that means that a 1 year old doesn't have friends, school, etc...

ScottyMacEsq :

I know.

ScottyMacEsq :

And so a court would be more willing to grant a relocation request in such a matter.

ScottyMacEsq :

If the child was 15, had lived there his/her entire life, had friends, sports, school, activities, etc... then there would be significant "roots" and the court would be less likely to allow the relocation (if the other parent objected)

Customer:

how does visitation work in such cases, would it be the custodial parents financial responsibility to get the child to visits?

ScottyMacEsq :

Note that if there's no objection, then the court almost never denies a relocation.

Customer:

oh there will be

ScottyMacEsq :

As for visitation, that depends on the distance. If it's across the world, it might be 1 long term visitation per year (i.e. Summer). If it's in the continental US, there might be 2 or 3 shorter periods per year.

Customer:

okay, this is helpful. at who

Customer:

*whose expense?

ScottyMacEsq :

This depends. Generally it's shared, but that's largely up to the judge given the individual factors of the case.

ScottyMacEsq :

Much of the time it's the "receiving parent" that pays (that is, you pay for the return portion of the trip, he pays for the trip to him)

ScottyMacEsq :

But it's largely in the judge's discretion, and "ability to pay" is a large factor that is considered.

Customer:

and if we got custody arranged before I knew if we would relocate it basically would not make a difference?

ScottyMacEsq :

If you mean if you can come to an agreement with the other parent, or custody arrangement with the courts, that specifically includes the possibility of relocating, then it wouldn't make a difference one way or the other. But if you had the custody issues handled first, and then went to court asking for permission to relocate, that would be a different matter and would be handled either by agreement or by court judgment. So merely having an order saying that you have custody does not allow you to relocate. You need permission to do so, but if you have that permission in the first order, whether or not you actually relocate, then you wouldn't need to go to court again.

Customer:

so in your best judgement, I should try to postpone any custody case until I have a better idea if relocating would be likely?

ScottyMacEsq :

Yes, unless the father starts making waves about custody / visitation. You would want to get a lawyer to handle the matter, but you really only want to go to court once if possible.

Customer:

okay thank you very much I think you have answered all my questions well.

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11339
Experience: Licensed Texas General Practice Attorney
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