Whether you are married or unmarried, a mother or a father, you need to have a good understanding of the rights and responsibilities you have with your children. So many parents prepare for the birth of their child without taking into consideration what the law holds in terms of what you must be able to do and what you can do concerning the rights of your children. In today's blog post from the Law Office of Bryan Fagan, we are going to discuss these rights and duties and how they will inevitably impact your relationship with your child.
To begin with, there are differences between the initial rights and duties of married parents, unmarried parents, mothers, and fathers. For instance, if you are married at the time your child is born then the rights and duties you have with your spouse are the same no matter if you are a mother or father. The law presumes that you are the father of your wife’s child so long as the child is born during your marriage or is born within 300 days of your divorce. Therefore, if you are a married father who is reading this blog post then you do not need to do anything additional to confirm or establish paternity.
On the other hand, the situation is different for unmarried parents. If you are a man whose child is born to a woman to whom you are not married, then you need to act to confirm paternity and then establish paternity. In some situations, you and the child’s mother may agree on your paternity. In that case, you can complete and sign what is known as an Acknowledgment of Paternity. This is a form from the state of Texas that allows you both to state for the record that you are the father of the child in question. Once you both sign the form and file it with the state no further action is needed to establish paternity.
An Acknowledgment of Paternity form can be found online or through the hospital where your child is born. This is the key to your being able to establish paternity the way that is the least time-consuming and expensive. You need to first establish paternity to have rights and duties for your child. Believe it or not, if you are a biological father to a child who has not yet established paternity then you have no more rights and duties to your child than I or any other man in the world does. For this reason, you cannot wait around. If you believe that you are the father to a child and are not married to the child’s mother, then you need to take action to establish paternity.
What to do if you and the child’s mother do not agree on paternity
There will be instances for some of you reading this blog post where the straightforward method I just mentioned regarding establishing paternity will not work. Unfortunately, not every situation will allow for you to quickly establish paternity and therefore have rights and duties about your child. If you find yourself in one of those situations, then you should pay close attention to how you can still establish paternity. In these situations, you will usually have to work to confirm paternity first to eventually establish paternity later on.
A petition to establish paternity is the tried-and-true method for establishing paternity in a situation where you and the child’s mother do not agree on paternity. You will file this petition in the family court which has jurisdiction over your case and then serve your child’s mother with notice of the lawsuit. She will show up to court on the day set for a hearing. The judge will initially order a DNA test, likely that day, to determine paternity. Assuming that the results of the test come back, and you are the father of the child then you would be able to establish paternity that way.
As part of a paternity lawsuit, you would also be able to establish rights, duties, possession, visitation, and other rights to your child. There are a lot of moving pieces in a situation where you and your co-parent do not agree on the paternity of your child. In a situation like that it is recommended that you work with an experienced attorney with the Law Office of Bryan Fagan. Our licensed family law attorneys can help you establish paternity or defend you and your child in a lawsuit where a man who is not your child's father is attempting to establish paternity. In situations like this where your child's well-being is at stake you do not want to put yourself in a position where you are unprepared. Having one of our attorneys by your side to collect evidence, advocate for you in the courtroom, and eventually draft court orders is an invaluable resource for you and your child.
Custody of your child once paternity is established
Once you have gotten paternity established in your case you can then move on to being able to establish custody rights. Custody is not a term that you will find in the Texas Family Code. However, because it Is such a well-established concept and term in the world of family law, everyone from clients to attorneys and judges tends to use the term "custody" frequently when discussing a range of topics including rights, duties, possession, visitation, child support, and many more. Therefore, let's familiarize ourselves with the world of Texas child custody laws and how these issues can impact your relationship with your child.
There are two types of custody that we need to discuss. First is physical custody. This has to do with possession and visitation. Possession means physically having your child during established periods through a court order. Visitations are the rights that a noncustodial parent has (the parent with whom the child does not reside primarily) with your child. As a part of a child custody case, one parent will gain primary conservatorship rights and will live with the child. The other parent will gain visitation rights and have predetermined periods in which he or she may possess the child.
Largely, it is up to you and your co-parent to determine how you would like to divide all these rights, duties, periods of possession, and everything else that goes into a child custody case. Remember that there is no guarantee you will be able to come back and successfully modify a child custody order. Therefore, you should make every effort to get it right the first time. The best way to do this is to work with one of the experienced family law attorneys with the Law Office of Bryan Fagan. We can guide you, inform you and advocate for you inside and outside of the courtroom.
There is also an important concept in family law known as legal custody. Legal custody has more to do with the specific rights and duties that you will hold concerning your children once paternity is established. Mothers and fathers have no differences in their legal rights to a child once he or she is born. However, after going through a child custody or divorce case that will no longer be true in most cases. Instead, some of the most significant differences in the conservatorship rights and duties between parents come about because of decisions made concerning which parent will be the primary conservator, which parent pays child support and other differences arrived at regarding rights and duties on educational and medical decisions.
Child support issues as a parental duty
One parent of your child will be named as the one who must pay child support. The other parent will have the right to receive the child support and a duty to spend the child support for the well-being and care of the children. When a parent is named as the primary conservator of a child that means he or she will be spending more time with the child than the other parent. If this is you then you can expect to have more expenses relating to the child by having your child more than the other parent. As a result, the other parent will likely have the duty to pay child support to support that child and contribute to raising him or her, financially speaking.
The next question that many parents would logically be asking is how to calculate child support. Child support is something that has a mathematical formula attached to it through the guidelines listed in the Texas Family Code. However, keep in mind that the best interests of your child will determine the amount of child support that you or your co-parent are ordered to pay. The best interest of your child is a factor that is designed to account for your child’s emotional and physical development. Therefore, keep that in mind as we go through how child support is calculated.
The child support guidelines indicate that the net monthly income of the paying parent must be calculated. Net monthly income means that the paying parent's gross income from all sources must be identified. Income from work, certain types of retirement, and investment income count for this calculation. Additionally, there are amounts of money that will be taken out of the gross income to come up with the amount of net monthly income that will be used to calculate child support.
The number of children that you have before the court will need to be determined to figure out the percentage which is multiplied against the paying parent’s net monthly income. For one child, 20% of the parent’s income would go towards child support. That percentage would increase by 5% for each additional child up to six children. For six children, no less than 40% of a paying parent’s net monthly income will be paid towards child support.
What we just discussed here in this blog post was a straightforward explanation about child support, how to calculate child support, and a best interest discussion relating to these subjects. However, bear in mind that what is in the best interest of your child can change over time. Additionally, figuring out the correct amount of income to calculate child support in the first place is complex if your child's other parent has multiple sources of income. Consider how especially difficult it can be to calculate this amount if you have little to no contact with him and he is not necessarily forthcoming with details about all the sources of income that he has. This puts you in a position where your child's father may end up being able to pay less than he should in child support because he knows that you cannot necessarily track down all his income.
For this reason, it is a great idea for you to hire an experienced family law attorney to help you in determining how much child support should be paid considering the circumstances of your family. Holding your child's other parent accountable to pay the correct amount of child support is sometimes easier said than done. It probably would not surprise you to learn that many parents go to great lengths to not pay the appropriate amount of child support. This is where having an attorney can help in terms of holding that parent accountable to you and to your child.
What you can run into if you do not hire an attorney to represent you in a child support or custody case is that mistakes are made, or details are overlooked. When this happens almost certainly what will result is that you won't have to file either a modification to change the child support orders in the future or an enforcement case that seeks to hold your child's father accountable for any violations made regarding the child support. After going through a difficult child custody case the last thing, you will want to do is find yourself back in court just a few years later. Hiring an attorney for your initial child custody case can help reduce the likelihood of your having to come back to court on these issues a few years later.
Determining custody- what is in the best interests of the child?
Overall, the driving force behind a child custody case is to determine what is in the best interests of your child. While it can be somewhat confusing to have to go through all these different issues that we have discussed today it is important to understand that the best interests of your child will be the criteria that a judge looks at your case with. This is true whether the judge is assessing the settlement agreement that you and your child’s other parent came to or is deciding your case during a trial.
The best interest of the child standard is one that requires you and your co-parent to honestly assess the situation with your family and to make determinations that suit your child the best even if they are not in your best interest. For instance, if you have never cared for your child on a day-to-day basis that may mean that you have been working diligently throughout the life of your child. So, even if this means that you have been a diligent provider you may not be best suited to become the primary conservator of your child. Pushing to become a primary conservator may not be something that works best for your child but may be something that you want for yourself. Identifying the difference and how it could negatively impact your child is a crucial part of a child custody case.
One of the major benefits of working with an experienced family law attorney is that you can gain a great deal of wisdom and knowledge that can help you during your case. The wisdom aspect is that an experienced family law attorney will have worked with numerous families who find themselves in a similar position as you do right now. The attorney can help advise and guide you on what has worked well for other families and can help you to understand what it means to go through in child custody case. An attorney who has the heart of a teacher can also help you to better understand the law and how it can relate to your family and your situation.
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