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Dallas Divorce Attorneys, Mark Nacol and Julian Nacol
Based in Dallas, Texas, the Nacol Law Firm PC, traces its roots to the firm of Mark A. Nacol and Associates PC, established in 1979. The Nacol Law Firm team shares its experience on a variety of legal topics here. See our recent posts below.
Prenatal DNA Testing in Texas : Establishing Paternity Prior to Birth of a Child
Recently the news covering the custody battle between Bode Miller and his child’s biological mother Sarah McKenna became a 24-hour news cycle. According to court filings, Ms. McKenna while still pregnant moved to New York from California to attend school. Approximately a month prior to Ms. McKenna’s departure from California, Mr. Miller filed a paternity and custody suit in California State Court. Two days after the child was born, Ms. McKenna filed a custody case in New York State Court. The New York family court decided that the Ms. McKenna had “fled” California with the child in utero; and, while this was not child abduction under the UCCJEA, the Court decided the move was simply to avoid the California Court’s jurisdiction. Further, the Court decided that the prior paternity/custody suit filed in California by Mr. Miller, “trumped” the New York filing as well, giving California statutory authority to decide the custody issue. In On November 14, 2013, the New York Family Court’s decision was overturned on appeal and was remanded back to New York family court for further decision on all issues.
This case has ignited a debate over whether a mother may move an unborn child to a different jurisdiction prior to the birth of the child.
Even if you have not been proven to be the biological father of the child, in Texas, you still have legal rights that may be enforced.
Prior to the birth of the child, you may request a DNA test from the court. If the mother agrees paternity can be determined even before the baby is born. In addition, now there are non-evasive and less risky options for prenatal testing for paternity.
A purported father does have the right to establish paternity. Establishing paternity in Texas can be a process that occurs prior to the birth of the child. There are several forms of pre-natal testing available. Some methods are costly and some methods more invasive than others. In Texas, a man can establish paternity prior to the birth of a child by filing a request for adjudication of parentage and voluntary litigation. If the mother agrees to prenatal testing the Court will accept the DNA test results and make a determination on the record. However, if the mother does not agree, a Court may not force her to have invasive testing on the fetus.
A purported father has a right to a custody determination although this right cannot be determined prior to the birth of the child. In Texas, a court has jurisdiction to decide custody issues if Texas is the “home state” of the child. In the case of a child less than six months of age, “home state” means “the state in which the child lived from birth with a parent. . . .” Tex. Fam. Code Ann §152.102(7); see also Waltenburg v. Waltenburg, 270 S.W.3d 308, 315 (Tex. App.—Dallas 2008, no pet.).
Holiday Visitation with Your Children: Texas Family Code Standard Possession Order for Holidays
Now is the time to start working on your Holiday 2013 Schedule for visitation with your children during this wonderful time of year! Here is a reminder of the current Texas Family Law Code’s Standard Possession Order for the Holidays.
§ 153.314. Holiday Possession Unaffected by Distance Parents Reside Apart.
The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:
Texas Family Law Code’s Standard Visitation Guidelines for Christmas Break:
(1) the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;
(2) the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;
Texas Family Law Code’s Standard Visitation Guidelines for Thanksgiving:
(3) the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;
Texas Family Law Code’s Standard Visitation Guidelines for Child’s Birthday:
(4) the parent not otherwise entitled under this standard order to present possession of a child on the child’s birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;
Texas Family Law Code’s Standard Visitation Guidelines for Father’s Day:
(5) if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father’s Day and ending on Father’s Day at 6 p.m., provided that, if he is not otherwise entitled under this standard order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;
Texas Family Law Code’s Standard Visitation Guidelines for Mother’s Day:
(6) if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother’s Day and ending on Mother’s Day at 6 p.m., provided that, if she is not otherwise entitled under this standard order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.
Texas child visitation orders may differ from the norm to accommodate family situations so you should always check your decree first! If in doubt about your holiday visitation time, contact an attorney who can help you to make sure nothing happens to affect this special season with your children. ‘Tis the Season To Be Jolly’!
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization