Some families choose to resolve custody manners informally.  When the parties are the biological parents, subsequent disputes can be resolved through a Texas custody case.  When one party is not biological parent, however, resulting disputes may be more complex. In a recent case, a maternal uncle and aunt appealed an order that required them to pay child support for their nephew.

When the child was born, the child’s biological mother asked her brother to act as the child’s father.  The brother signed an acknowledgment of paternity, birth certificate, and a verification of birth facts.  The birth certificate listed the brother’s wife as the mother.  Initially, they all lived together, but the mother moved out following a falling out with the couple.

Mother Files Paternity Suit

In August of 2016, the mother petitioned to adjudicate parentage, asking the court to adjudicate her as the mother and an identified man as the father.  The brother and his wife were named as parties, but they also intervened in the case, asking the court to name them the child’s managing conservators and terminate the mother and alleged father’s parental rights.

The trial court named the brother and his wife as the child’s temporary managing conservators and the alleged parents as temporary possessory conservators on a temporary basis.  The alleged parents were given supervised visitation and ordered to pay child support.  The court found the genetic test results showed the alleged father was the father and the alleged mother was the mother.

After a final trial, the trial court named the mother sole managing conservator and the brother and his wife as possessory conservators on a final basis.  The court ordered the brother and his wife to pay child support and attorney’s fees to the mother. The court issued orders for possession and access to the child for the father and for the brother and his wife. The court ordered that the birth certificate be corrected to reflect the parents’ names and that the child’s name be changed.  The brother and his wife ultimately appealed.

Paternity Suit Appealed

The brother and his wife argued the court abused its discretion by ordering genetic testing for the father before the brother’s acknowledgment of paternity was set aside.

The Texas Family Code sets out how parent-child relationships are established.  A mother’s relationship can be established through the woman giving birth, being adjudicated the child’s mother, or adopting the child.  Tex. Fam. Code 160.201(a).  A father’s relationship can be established through an acknowledgment of paternity, adjudication, an unrebutted presumption of parentage, or adoption.  Tex. Fam. Code 160.201(b). A valid acknowledgment of paternity gives the acknowledged father all the rights and duties of a parent.  Tex. Fam. Code § 160.305(a).  The acknowledgment may be rescinded in the first 60 days.  After that, the signatory may challenge the acknowledgment only based on fraud, duress, or material mistake of fact. A challenge of the acknowledgment must generally be filed before an order affecting the child is issued. Tex. Fam. Code § 160.308(a).

The parties indicated there were no court-ordered relationships affecting the child.  The court found the deadline to challenge the brother’s acknowledgment of paternity had not passed.

The mother’s petition indicated an intent to establish the parent-child relationship between her and the father and the child and to exclude the brother and his wife as the alleged parents of the child. An acknowledged father’s paternity may be proved through genetic testing. Genetic testing showed the alleged father actually the biological father. The appeals court found the trial court therefore must have discretion or authority to order genetic testing of someone who was not the acknowledged father. Genetic-test results showing the signatory is not the child’s father constitutes a material mistake of fact.

A proceeding challenging an acknowledgment of paternity must be conducted in the same manner as an adjudication of parentage, and the appeals court found that had occurred. The appeals court found the mother had followed the proper procedure to challenge the acknowledgment of paternity. The appeals court also found no error in the adjudication of the alleged father as the father, but found the court should have adjudicated the brother as not the father.

The brother and his wife also argued the trial court did not have personal jurisdiction and authority to order them, as non-parents, to pay child support.  The appeals court pointed out they had submitted themselves to the court’s jurisdiction by petitioning the court but then considered whether the court acted within its authority.

Appellate Court Reverses Trial Court’s Decision

The trial court had found that the mother and father were the parents of the child and identified the brother and his wife as the child’s aunt and uncle.  The trial court therefore did not have the authority to order the brother and his wife to pay child support.

The appeals court also found there was insufficient evidence to support the award of attorney’s fees.

The appeals court reversed the order for child support and attorney’s fees. The appeals court remanded the case on those issues and adjudication the brother was not the father and suggested the trial court include the adjudication of parentage in the final order.  The rest of the order was affirmed.

Informally Resolving Custody Issues Can Lead to Complications – Call McClure Law Group Today

Trying to informally resolve custody and parentage can sometimes result in complications later. Before doing so, you should seek the advice and guidance of an experienced Texas custody attorney who can advise you of your options.  Schedule your consultation with McClure Law Group by calling 214.692.8200.