I get questions frequently from clients and potential clients regarding a wide range of subjects. I hear a lot of interesting things, but normally the questions do not cause me to do any mental gymnastics.
However, I recently had a consult with a potential client that at first, I thought was about a routine name change. During the consult, he mentioned that he would like to amend his birth certificate to add his biological father as his father.
This was interesting, but not anything we hadn’t handled before. Within the last year, we had handled a similar request for a woman in her 50s, who wanted to do the same thing.
When I researched that case, I learned that there was no time limitation for establishing paternity when there is no presumed, acknowledged, or adjudicated father. In that case, we got everyone served who needed to be served, did genetic testing, and established her biological father as her father. This, then, allowed us to help her amend her birth certificate.
No Time Limitation: Child Having No Presumed, Acknowledged, or Adjudicated Father
Under Section 160.606:
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.
The following is a relevant case that discusses this topic:
In Interest of A.S.L., 923 S.W.2d 814, 815 (Tex. App. 1996)
This case answered the question of whether an action to establish paternity of an illegitimate child may be brought after the death of the alleged father. The court of appeals answered the question in the affirmative.
The Wrinkle in the Potential Client’s Story
What did give me pause was when he stated that his biological father was deceased. This made me conjure up images of having to ask a judge to dig up his dead father so that genetic testing could be done.
After thinking about how to accomplish what the potential client wanted, it occurred to me that his name could be verified in an easier way. I told the potential client that I needed some additional information. One of the questions I asked was if his father ever paid his mother any child support. The potential client said yes.
Updating the Birth Certificate When a Court Order Already Exists
That answer changed the entire scenario. I would no longer have to get a court to adjudicate his dead father as being his father. A court had already done so when it signed a child support order.
RECORD OF PATERNITY
Under Section 192.005 of the Health and Safety Code:
“(a) The items on a birth certificate relating to the child's father shall be completed only if:
1) the child's mother was married to the father:
(A) at the time of the child's conception;
(B) at the time of the child's birth; or
(C) after the child's birth;
(2) paternity is established by order of a court of competent jurisdiction; or
(3) a valid acknowledgment of paternity executed by the father has been filed with the vital statistics unit as provided by Subchapter D, Chapter 160, Family Code.”
SUPPLEMENTARY BIRTH CERTIFICATES
Under Section 192.006 of the Health and Safety Code:
“(a) A supplementary birth certificate may be filed if the person who is the subject of the certificate:
(1) becomes the child of the person's father by the subsequent marriage of the person's parents;
(2) has the person's parentage determined by a court of competent jurisdiction; or
(3) is adopted under the laws of any state.
(b) An application for a supplementary birth certificate may be filed by:
(1) an adult whose status is changed; or
(2) a legal representative of the person whose status is changed.
(c) The state registrar shall require proof of the change in status that the executive commissioner by rule may prescribe.
(d) Supplementary birth certificates and applications for supplementary birth certificates shall be prepared and filed in accordance with department rules.
(e) In accordance with department rules, a supplementary birth certificate may be filed for a person whose parentage has been determined by an acknowledgment of paternity.
Many readers of our blog are probably aware that Houston recently underwent flooding as a result of Hurricane Harvey.
After speaking with the potential client, I tried to look up his case to see the order. I was able to look up the case, but not see the order, as it had not been imaged.
This meant that someone from my office would have to physically go down to Houston and try and get a copy. This would necessitate going to the building where the records for older cases are kept. My concern involved whether or not the record still existed or had been destroyed as result of flooding or otherwise.
If it had not been destroyed, it would be a relatively uncomplicated process of:
- Getting an adult name change done,
- getting a certified copy of the old order, and
- then filling out the necessary forms to send off to the Texas Vital Statistics office to obtain an amended birth certificate.
What if the Court Order Was Destroyed?
If the old court order had been destroyed as a result of flooding or otherwise, it occurred to me that it may be possible to still use it as evidence if the record was somewhere else. I looked at the Texas Civil Practice and Remedies Code for answers.
Under Section 19.001 of the Texas Civil Practice and Remedies Code, the lost records chapter applies to:
(1) a deed, bond, bill of sale, mortgage, deed of trust, power of attorney, or conveyance that is required or permitted by law to be acknowledged or recorded and that has been acknowledged or recorded; or
(2) a judgment, order, or decree of a court of record of this state.
A person may supply a lost, destroyed, or removed record by parol proof of the record's contents as provided by this chapter.
Application for Relief
(a) To supply a record that has been lost, destroyed, or removed:
(1) a person interested in an instrument or in a judgment, order, or decree of the district court may file an application with the district clerk of the county in which the record was lost or destroyed or from which the record was removed; or
(2) a person interested in a judgment, order, or decree of a county court may file an application with the clerk of the court to which the record belonged.
(b) The application must be in writing and must set forth the facts that entitle the applicant to relief.
(a) If an application is filed to supply a record, the clerk shall issue a citation to the following, as applicable, or to the person's heirs or legal representatives:
(1) each grantor of property, in the case of a record of a deed;
(2) an interested party, in the case of an instrument other than a deed; or
(3) a party adversely interested to the applicant at the time of the rendition, in the case of a judgment, order, or decree.
(b) The citation must direct the person to whom it is issued to appear at a designated term of the court to contest the applicant's right to record a substitute.
(c) Process must be served in the manner provided by law for civil cases.
After a Hearing
After a hearing …” if the court is satisfied from the evidence of the previous existence and content of the record and of its loss, destruction, or removal, the court shall enter on its minutes an order containing its findings and a description of the record and its contents.
(b) A certified copy of the order may be recorded in the proper county.
Effect of Order
The order supplying the record:
(1) stands in the place of the original record;
(2) has the same effect as the original record;
(3) if recorded, may be used as evidence in a court of the state as though it were the original record; and
(4) carries the same rights as the original record, including:
(A) preserving liens from the date of the original record; and
(B) giving parties the right to issue execution under the order as under the original record.
If a Record Existed Outside of the Original
The reading of the Texas Civil Practice and remedies code satisfied my instinct that if another copy of the order existed outside the court system, it would be possible to use after a hearing for the purposes of amending the potential client’s birth certificate.
I suggested that the potential client should talk to his mother to see if:
- she still had a copy of the Order; and
- if she had been represented by an attorney.
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