In Texas, if you are not married when your child is born, there is no legal father.  The biological dad is not legally the father until a court adjudicates him to be so.  (Prior to a court finding that he is the legal father, the unmarried biological father is referred to as the “alleged father.”)  The bio dad can (and should) sign an Acknowledgment of Paternity form when the baby is born.  Many hospitals now have this form on site when a baby is born.

In order  for the biological father to obtain legal status as the father, someone must file a paternity suit.  Either parent can file a paternity suit, as can the Attorney General.  (Usually the Attorney General will file suit when Medicaid is involved because they want the government to be reimbursed for medical expenses.)  This is the case even if everyone admits he is the dad and there is no dispute.  This is also the case even if dad signed a valid Acknowledgment of Paternity.

The paternity suit serves several purposes.  First, it allows the Court to formally adjudicate the biological dad as the legal father.  If everyone admits he is the father or if he signed an Acknowledgment of Paternity, then the Court will adjudicate him to be the father.  If either side contests paternity, the Court will order a paternity test.    Other issues typically involved in a paternity suit are conservatorship (rights and duties), possession and access (the schedule for when each parent has the child), and child support.

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Almost every contested family law matter – divorce, child custody, CPS, termination of parental rights, paternity – ends up in mediation before a final trial.  Most, if not all, courts in Dallas County and Collin County require mediation before a final trial.

Mediation involves a neutral mediator – often an attorney but it does not have to be – who tries to help facilitate a settlement.  Normally, one party and her attorney are in one room and the other party and his attorney are in another.  The mediator goes back and forth between the rooms to try and reach a settlement.  Most of the time, I never even see the opposing party or that party’s attorney at the mediation.

Before I attend mediation with a client, I always prepare a confidential mediation statement that sets forth our side of the story for the mediator.  This helps save time at mediation.  Often times, I have found that the other side does not prepare a mediation statement.  I feel this gives my client a great advantage, as the mediator is starting the case with just our side of the story.

The vast majority of cases settle at mediation.   I have taken many cases to mediation that I thought could not be settled, and they have settled the majority of the time.  Even if a final settlement does not get reached, the parties can settle some of the issues to narrow down the issues for trial.

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Most fathers-to-be assume that being the biological father of the child automatically gives them legal status as the father.  Most fathers-to-be also assume that having their name on the birth certificate as the father makes them the legal father.  Neither of those assumptions is correct. In the state of Texas, you are not the legal father unless one of three things happens: (1) you are the presumed father; (2) you sign a valid acknowledgment of paternity, or (2) a court enters an order stating you are the father.

A man is a “presumed” father if he (a) was married to the mother when the child was born, (b) was married to the mother any time during the 300 days before the child was born, or (c) married the mother after the baby was born and voluntarily claimed paternity through the bureau of vital statistics, on the birth certificate or in a record promising to support the child as his own.  If you do not qualify as a presumed father and have not taken steps to obtain legal status as the father, you are known as the “alleged father.”  An alleged father is the genetic father or one who is claimed to be the genetic father of the child.

If you are not married and you find yourself becoming a father, you want to be sure both you and the mother sign an acknowledgment of paternity when the baby is born.  The hospital may have this form available for you to sign.  Be sure to keep a copy of the completed form for your records.  The form must be completed before a certified acknowledgment of paternity entity, and it must be properly submitted to the Bureau of Vital Statistics.  In other words, you cannot simply print a form off the internet, fill it out, and be legally considered the father.  If you and the mother properly complete an acknowledgment of paternity, you will have all the legal rights and responsibilities of a parent and will legally be considered the father.

If no acknowledgment of paternity was signed and you do not meet the criteria of a “presumed father,” the courts will have to make a finding that you are the dad.  This is known as “adjudicating paternity.”  If both parties agree in court that you are the dad, then the judge will enter a finding that you are the father.  If one party contests paternity, then the court will order genetic testing.  If the testing shows you are the father, then you will legally be adjudicated as the dad.

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Child custody disputes can take place in or out of the divorce context.  Regardless of whether or not the parents were ever married, the process and rules involved with a child custody dispute are basically the same.

When a child custody case is not part of a divorce, the initial suit is filed as a Suit Affecting the Parent-Child Relationship or a Suit to Adjudicate Parentage (if paternity has not been legally established).  Unlike a divorce, which has a sixty-day waiting period before it can be finalized, there is no waiting period for a pure child custody matter.  If the parties have reached an agreement, a final order can be entered almost immediately after filing the suit.

In more amicable cases, the Petitioner (the party who files the suit) will present the Respondent (the person being sued) with the suit and ask him or her to sign a Waiver of Service.  The Waiver of Service simply tells the court that the Respondent received the suit and is agreeing not to be formally served.  (Most people do not want to be served, so this is the friendlier and cheaper option.  I always recommend trying for a waiver first unless the situation is hostile or unless a quick hearing is needed that requires notice.)

Some contested cases need court intervention quickly in the form of a temporary orders hearing.  This hearing can often occur within a couple of weeks of filing, and it is sort of a mini-trial.  At a temporary orders hearing, the court will determine custody arrangements for while the case is pending and order temporary child support, if appropriate.  The court may also order a social study or mediation.

If the case does not settle quickly, discovery will be needed.  Discovery can include obtaining records, sending formal written discovery to the other party (Requests for Production of Documents, Requests for Admissions, or Interrogatories), or depositions.  In contested custody cases, a social study is often required.  Before a final trial, most courts will order the parties to mediate the case.  If a settlement is not reached, then the parties will proceed to a final trial.

In my experience, most contested custody disputes last about a year.  A settlement can be reached at any time, and the vast majority of cases do settle before a final trial.

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