TIME IS TICKING On New Texas Mistaken Paternity Law: September 1, 2012
Now it is time for “fathers” or men who have been paying child support for children who are not their biological children to assert their rights.
Texas new law, Texas SB785, permits men who have been ordered to pay child support, without genetic testing, to request genetic testing in order to determine whether they are the genetic parent of the child.
But the clock is ticking. If you suspect that you are paying child support for a child who is not your biological child, you must file the petition before September 1, 2012.
After September 1, 2012, a man must file a petition to determine genetic parentage no later than the first anniversary of the date on which he becomes aware of facts indicating that he is not the child’s genetic father.
In order to file for relief under this new law, the man must have signed an acknowledgement of paternity or failed to contest paternity in the previous proceeding because of a mistaken belief that he was the child’s father based on misrepresentations that led him to that conclusion.
If the man knew he was not the father at the time he signed the acknowledgement of paternity or the previous court order, the new law does not apply.
If the genetic testing concludes that the man is not the child’s genetic father, the court shall render an order terminating the parent-child relationship and terminating the man’s obligation for future child support.
The new order, however, does not affect the man’s obligations for child support or child support arrearages accrued before the date of the order. However, the accrued obligations are not enforceable by contempt proceedings.
If the court order states that the father listed on the birth certificate is not the biological father and the information can be removed from the birth record, then the birth certificate can be revised as well.
Even if the parent-child relationship is terminated, the man may request the court to order periods of possession or access to the child following the termination. The court may order periods of possession or access to the child only if the court determines that denial of possession or access would significantly impair the child’s physical health or emotional well-being. The law directs the court to focus on the child’s well-being, not on the man’s desire to continue seeing the child.
If you have been paying child support due to a mistaken belief that you were the father, the time to act is now. Remember the clock is ticking! If you suspect that you are paying child support for a child who is not your biological child, you must file the petition before September 1, 2012. If you wait to file for relief, you will be barred! Contact an attorney now!
New Paternity Prenatal Testing Available Before Birth of Child
Time is about up on the Amnesty Provision of the New Texas Mistaken Paternity Law: September 1, 2012!
Think you are the “Father” before the birth of the child and would like to find out using a new procedure? Now you are in luck! A new blood test has just become available which can determine paternity as early as the eighth week of pregnancy without an invasive procedure that could potentially cause a miscarriage. This new test requires only blood samples from the pregnant woman and the potential father. The price of the prenatal testing is currently around $1500.00.
What does Texas Family Code 160.502 say about this genetic testing before the birth of the child? A court shall order a child on prima fascia proof and other designated individuals to submit to genetic testing if the request is made by a party to determine parentage. If a request for genetic testing of a child is made before the birth of the child, the court or support enforcement agency may not order utero testing. If two or more men are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.
Now it is time for “fathers” or men who have been paying child support for children who are not their biological children to assert their rights.
Texas new law, Texas SB785, permits men on prima fascia proof who have been ordered to pay child support, without genetic testing, to request genetic testing in order to determine whether they are the genetic parent of the child.
But the clock is ticking. If you suspect that you are paying child support for a child who is not your biological child, you should file the petition before September 1, 2012.
After September 1, 2012, a man must file a petition to determine genetic parentage no later than the first anniversary of the date on which he becomes aware of facts indicating that he is not the child’s genetic father.
In order to file for relief under this new law, the man must have signed an acknowledgement of paternity or failed to contest paternity in the previous proceeding because of a mistaken belief that he was the child’s father based on misrepresentations that led him to that conclusion.
If the man had knowledge he was not the father at the time he signed the acknowledgement of paternity or the previous court order, the new law does not apply.
If the genetic testing concludes that the man is not the child’s genetic father, the court shall render an order terminating the parent-child relationship and terminating the man’s obligation for future child support. The law further provides that he may not be held in contempt by the court for arrearage if the test is negative.
The new order, however, does not affect the man’s obligations for child support or child support arrearages accrued before the date of the order. However, the accrued obligations are not enforceable by contempt proceedings.
If the court order states that the father listed on the birth certificate is not the biological father and the information can be removed from the birth record, then the birth certificate can be revised as well.
Even if the parent-child relationship is terminated, the man may request the court to order periods of possession or access to the child following the termination. The court may order periods of possession or access to the child only if the court determines that denial of possession or access would significantly impair the child’s physical health or emotional well-being. The law directs the court to focus on the child’s well-being, not on the man or the mother’s wishes with regard to the man’s desire to continue seeing the child.
If you have been paying child support due to a mistaken belief that you were the father, the time to act is now. Remember the clock is ticking! If you suspect that you are paying child support for a child who is not your biological child, you should file the petition before September 1, 2012. If you wait to file for relief, you may be barred! Contact an attorney now!
Texas Paternity Law – SB785 – Deadline September 1, 2012
We hear a lot about dead-beat dads, or parents who do not pay their child support obligations. Now it is time for “fathers” or men who have been paying child support for children who are not their biological children to assert their rights.
Texas SB785, which permits men who have been ordered to pay child support, without genetic testing, to request genetic testing in order to determine whether they are the genetic parent of the child. But the clock is ticking. If you suspect that you are paying child support for a child who is not your biological child, you must file the petition before September 1, 2012.
What about Summer Visitation in the Standard Child Possession Order: Texas Family Code
When parents are battling over divorce issues and child custody, they often times do not understand that the Texas Family Code has expanded the standard child possession order to make joint managing conservators with more equal rights and duties and possession of the child. It is important to keep in mind that, under certain circumstances, and depending on the age of a child, a judge may alter the standard possession order in any way that serves the best interest of the child.
The following is an example of a standard possession order for a parent who lives within 100 miles of their child under the Texas Family Code.
IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Standard Possession Order.
PARENTS WHO RESIDE UNDER 100 MILES APART:
Except as otherwise explicitly provided in this Standard Possession Order, when Possessory Conservator resides 100 miles or less from the primary residence of the child, Possessory Conservator shall have the right to possession of the child as follows:
3. Weekends—
Weekends that do not occur during the regular school term, beginning at 6:00 p.m. on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.
2. Extended Summer Possession by Possessory Conservator—
With Written Notice by April 1—If Possessory Conservator gives Managing Conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory Conservator shall have possession of the child for thirty days beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation in that year, to be exercised in no more than two separate periods of at least seven consecutive days each, as specified in the written notice, provided that the period or periods of extended summer possession do not interfere with Father’s Day Weekend. These periods of possession shall begin and end at 6:00 p.m.
Without Written Notice by April 1—If Possessory Conservator does not give Managing Conservator written notice by April 1 of a year specifying an extended period or periods of summer possession for that year, Possessory Conservator shall have possession of the child for thirty consecutive days in that year beginning at 6:00 p.m. on July 1 and ending at 6:00 p.m. on July 31.
Notwithstanding the Thursday periods of possession during the regular school term and the weekend periods of possession ORDERED for Possessory Conservator, it is explicitly ORDERED that Managing Conservator shall have a superior right of possession of the child as follows:
2. Summer Weekend Possession by Managing Conservator—If Managing Conservator gives Possessory Conservator written notice by April 15 of a year, Managing Conservator shall have possession of the child on any one weekend beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during any one period of the extended summer possession by Possessory Conservator in that year, provided that Managing Conservator picks up the child from Possessory Conservator and returns the child to that same place and that the weekend so designated does not interfere with Father’s Day Weekend.
3. Extended Summer Possession by Managing Conservator—If Managing Conservator gives Possessory Conservator written notice by April 15 of a year or gives Possessory Conservator fourteen days’ written notice on or after April 16 of a year, Managing Conservator may designate one weekend beginning no earlier than the day after the child’s school is dismissed for the summer vacation and ending no later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by Possessory Conservator shall not take place in that year, provided that the weekend so designated does not interfere with Possessory Conservator’s period or periods of extended summer possession or with Father’s Day Weekend.
PARENTS WHO RESIDE OVER 100 MILES APART:
If the possessory conservator resides more than 100 miles from the residence of the child, the possessory conservator shall have the right to possession of the child as follows:
1. Summer Possession:
(A) Gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each with each period of possession beginning and ending at 6 p.m. on each applicable day; or
(B) Does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 consecutive days beginning at 6 p.m. on June 15 and ending at 6 p.m. on July 27;
2. If the managing conservator gives the possessory conservator written notice by April 15 of each year the managing conservator shall have possession of the child on one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (3), provided that if a period of possession by the possessory conservator exceeds 30 days, the managing conservatory may have possession of the child under the terms of this subdivision on two nonconsecutive weekends during that time period, and further provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and
3. If the managing conservatory give the possessory conservator written notice by April 15 of each year, the managing conservator may designate 21 days beginning not earlier than the day after the child’s school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each with each period of possession beginning and ending at 6 p.m. on each applicable day, during which the possessory conservator may not have possession of the child, provided that the period or periods so designated do not interfere with the possessory conservator’s period or periods of extended summer possession or with Father’s Day if the possessory conservator is the father of the child.
Holidays Unaffected by Distance
Notwithstanding the weekend and Thursday periods of possession of Possessory Conservator, Managing Conservator and Possessory Conservator shall have the right to possession of the child as follows:
Father’s Day Weekend—Father shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father’s Day and ending at 6:00 p.m. on Father’s Day, provided that if Father is not otherwise entitled under this Standard Possession Order to present possession of the child, he shall pick up the child from the other conservator’s residence and return the child to that same place.
General Terms and Conditions
Except as otherwise explicitly provided in this Standard Possession Order, the terms and conditions of possession of the child that apply regardless of the distance between the residence of a parent and the child are as follows:
1. Surrender of Child by Managing Conservator—Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the beginning of each period of Possessory Conservator’s possession at the residence of Managing Conservator.
If a period of possession by Possessory Conservator begins at the time the child’s school is regularly dismissed, Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the beginning of each such period of possession at the school in which the child is enrolled. If the child is not in school, Possessory Conservator shall pick up the child at the residence of Managing Conservator at 6:00 p.m., and Managing Conservator is ORDERED to surrender the child to Possessory Conservator at the residence of Managing Conservator at 6:00 p.m. under these circumstances.
2. Surrender of Child by Possessory Conservator—Possessory Conservator is ORDERED to surrender the child to Managing Conservator at the residence of Managing Conservator at the end of each period of possession.
3. Return of Child by Possessory Conservator—Possessory Conservator is ORDERED to return the child to the residence of Managing Conservator at the end of each period of possession. However, it is ORDERED that, if Managing Conservator and Possessory Conservator live in the same county at the time of rendition of this order, Possessory Conservator’s county of residence remains the same after rendition of this order, and Managing Conservator’s county of residence changes, effective on the date of the change of residence by Managing Conservator, Possessory Conservator shall surrender the child to Managing Conservator at the residence of Possessory Conservator at the end of each period of possession.
If a period of possession by Possessory Conservator ends at the time the child’s school resumes, Possessory Conservator is ORDERED to surrender the child to Managing Conservator at the end of each such period of possession at the school in which the child is enrolled or, if the child is not in school, at the residence of Managing Conservator at [address].
4. Surrender of Child by Possessory Conservator—Possessory Conservator is ORDERED to surrender the child to Managing Conservator, if the child is in Possessory Conservator’s possession or subject to Possessory Conservator’s control, at the beginning of each period of Managing Conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.
5. Return of Child by Managing Conservator—Managing Conservator is ORDERED to return the child to Possessory Conservator, if Possessory Conservator is entitled to possession of the child, at the end of each of Managing Conservator’s exclusive periods of possession, at the place designated in this Standard Possession Order.
6. Personal Effects—each conservator is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession.
7. Designation of Competent Adult—each conservator may designate any competent adult to pick up and return the child, as applicable. IT IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned.
8. Inability to Exercise Possession—each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator’s right of possession for any specified period.
9. Written Notice—written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due.
10. Notice to School and Managing Conservator—If Possessory Conservator’s time of possession of the child ends at the time school resumes and for any reason the child is not or will not be returned to school, Possessory Conservator shall immediately notify the school and Managing Conservator that the child will not be or has not been returned to school.
Again, a Judge may under varied circumstances change any provision of a Standard Possession Order.
How The National Foreclosure Settlement May Affect You
On April 6, 2012, a federal judge approved the $26 billion foreclosure settlement agreed upon between the nation’s five largest banks and 49 state attorneys general and the District of Columbia. Oklahoma is the only state that did not participate in the settlement and settled individually with the five banks in early February.
This settlement could help the nation’s hardest hit mortgage borrowers who may see some significant relief on their mortgage payments. The participating banks will reduce the principal on loans held by underwater homeowners, refinance some mortgages to today’s low interest rates and try to compensate borrowers who have lost their homes due to improper foreclosure practices. These banks have also agreed to change how they approve and handle future foreclosures.
What is the settlement agreement and how soon will start affecting the target borrowers?
The mortgage lenders and loan servicers have committed to $17 billion to reduce principal for borrowers who owe more than their home’s current value and are behind on their payments.
Four of the banks will average the amount of principal reduction at $20,000 per borrower and Bank of America will average $100,000 or more per borrower.
$3.7 billion will go to refinancing mortgages for borrowers who are current on their payments. This will help them to take advantage of the current low interest rates available.
The five banks will also pay out $5 billion to the federal government and the states. This fund will provide payments of $1,500-$2,000 to foreclosure homeowners who have lost their homes to foreclosure. Other funds will be paid to homeowner advocacy organizations to help borrowers facing foreclosure and servicer abuses.
$1billion will be paid by Bank of America to the Federal Housing Administration to settle charges that its subsidiary, Countywide Financial, defrauded the housing agency.
All banks have agreed to eliminate robo-signing and to use proper and legal procedures when putting homeowners through the foreclosure process. The banks have also agreed to end servicer abuses and to include principle reductions more often in their mortgage modifications programs.
Which Mortgage Lenders are taking part in this settlement?
Bank of America, Wells Fargo, JPMorgan Chase, Citigroup, and Ally Financial are the current five participants. Additional loan servicers may join the settlement at a later date which would increase the settlement.
The Federal Housing Finance Agency, which oversees the two government-sponsored mortgage giants, Fannie Mae and Freddie Mac are not part of the settlement and will not allow any balance reductions for loans insured by the companies under the settlement.
If you lost your home to foreclosure, how you qualify for a payment?
You may be eligible for a payment of up to $2,000 if you were foreclosed on between 2008 through 2011. If you think you qualify, please contact your bank now.
If you also think you may qualify for a principal reduction or refinanced mortgage, please contact your lender/servicer and ask them to review your case now. The banks have said that they will start to identify borrowers who quality for the deal quickly so call your lender/servicer now!
If Individual borrowers take the offered money they will not give up any right to sue.
Under the Foreclosure Settlement, all principal reduction, refinancing and payments must be completed with a three and a half year period. The state attorneys general and the Dept. of Housing and Urban Development want the majority of settlement action to be completed within 12 months.
As for tax considerations, the resulting gain your house principal is reduced in 2012, it will not be subject to income tax. The Mortgage Debt Relief Act of 2007, which expires at the end of 2012, allows taxpayers to exclude income from the discharge on their principal residence. If this Act is not extended into 2013, there may be a taxable event if principal reduction on a home occurs thereafter.
Hopefully, the new rules and regulations the banks have agreed to under the settlement, will have a positive influence on proper future mortgage borrowing practices.
NACOL LAW FIRM P.C.
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Dallas, Texas 75231
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
