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http://tlo2.tlc.state.tx.us/statutes/fa.toc.htm - § 160.204. -
FAMILY CODE
CHAPTER 160. UNIFORM PARENTAGE ACT
SUBCHAPTER A. APPLICATION AND CONSTRUCTION
§ 160.001. APPLICATION AND CONSTRUCTION. This chapter
shall be applied and construed to promote the uniformity of the law
among the states that enact the Uniform Parentage Act.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.002. CONFLICTS BETWEEN PROVISIONS. If a provision
of this chapter conflicts with another provision of this title or
another state statute or rule and the conflict cannot be
reconciled, this chapter prevails.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
SUBCHAPTER B. GENERAL PROVISIONS
§ 160.101. SHORT TITLE. This chapter may be cited as the
Uniform Parentage Act.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.102. DEFINITIONS. In this chapter:
(1) "Adjudicated father" means a man who has been
adjudicated by a court to be the father of a child.
(2) "Assisted reproduction" means a method of causing
pregnancy other than sexual intercourse. The term includes:
(A) intrauterine insemination;
(B) donation of eggs;
(C) donation of embryos;
(D) in vitro fertilization and transfer of
embryos; and
(E) intracytoplasmic sperm injection.
(3) "Child" means an individual of any age whose
parentage may be determined under this chapter.
(4) "Commence" means to file the initial pleading
seeking an adjudication of parentage in a court of this state.
(5) "Determination of parentage" means the
establishment of the parent-child relationship by the signing of a
valid acknowledgment of paternity under Subchapter D or by an
adjudication by a court.
(6) "Donor" means an individual who produces eggs or
sperm used for assisted reproduction, regardless of whether the
production is for consideration. The term does not include:
(A) a husband who provides sperm or a wife who
provides eggs to be used for assisted reproduction by the wife; or
(B) a woman who gives birth to a child by means of
assisted reproduction.
(7) "Ethnic or racial group" means, for purposes of
genetic testing, a recognized group that an individual identifies
as all or part of the individual's ancestry or that is identified by
other information.
(8) "Genetic testing" means an analysis of an
individual's genetic markers to exclude or identify a man as the
father of a child or a woman as the mother of a child. The term
includes an analysis of one or more of the following:
(A) deoxyribonucleic acid; and
(B) blood-group antigens, red-cell antigens,
human-leukocyte antigens, serum enzymes, serum proteins, or
red-cell enzymes.
(9) "Intended parents" means individuals who enter
into an agreement providing that the individuals will be the
parents of a child born to a gestational mother by means of assisted
reproduction, regardless of whether either individual has a genetic
relationship with the child.
(10) "Man" means a male individual of any age.
(11) "Parent" means an individual who has established
a parent-child relationship under Section 160.201.
(12) "Paternity index" means the likelihood of
paternity determined by calculating the ratio between:
(A) the likelihood that the tested man is the
father of the child, based on the genetic markers of the tested man,
the mother of the child, and the child, conditioned on the
hypothesis that the tested man is the father of the child; and
(B) the likelihood that the tested man is not the
father of the child, based on the genetic markers of the tested man,
the mother of the child, and the child, conditioned on the
hypothesis that the tested man is not the father of the child and
that the father of the child is of the same ethnic or racial group as
the tested man.
(13) "Presumed father" means a man who, by operation
of law under Section 160.204, is recognized as the father of a child
until that status is rebutted or confirmed in a judicial
proceeding.
(14) "Probability of paternity" means the
probability, with respect to the ethnic or racial group to which the
alleged father belongs, that the alleged father is the father of the
child, compared to a random, unrelated man of the same ethnic or
racial group, expressed as a percentage incorporating the paternity
index and a prior probability.
(15) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in a perceivable form.
(16) "Signatory" means an individual who
authenticates a record and is bound by its terms.
(17) "Support enforcement agency" means a public
official or public agency authorized to seek:
(A) the enforcement of child support orders or
laws relating to the duty of support;
(B) the establishment or modification of child
support;
(C) the determination of parentage;
(D) the location of child-support obligors and
their income and assets; or
(E) the conservatorship of a child or the
termination of parental rights.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.103. SCOPE OF CHAPTER; CHOICE OF LAW. (a) This
chapter governs every determination of parentage in this state.
(b) The court shall apply the law of this state to
adjudicate the parent-child relationship. The applicable law does
not depend on:
(1) the place of birth of the child; or
(2) the past or present residence of the child.
(c) This chapter does not create, enlarge, or diminish
parental rights or duties under another law of this state.
(d) Repealed by Acts 2003, 78th Leg., ch. 457, § 3.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001; Acts 2003, 78th Leg., ch. 457, § 3, eff. Sept. 1, 2003.
§ 160.104. AUTHORIZED COURTS. The following courts are
authorized to adjudicate parentage under this chapter:
(1) a court with jurisdiction to hear a suit affecting
the parent-child relationship under this title; or
(2) a court with jurisdiction to adjudicate parentage
under another law of this state.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.105. PROTECTION OF PARTICIPANTS. A proceeding
under this chapter is subject to the other laws of this state
governing the health, safety, privacy, and liberty of a child or any
other individual who may be jeopardized by the disclosure of
identifying information, including the person's address, telephone
number, place of employment, and social security number and the
name of the child's day-care facility and school.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.106. DETERMINATION OF MATERNITY. The provisions of
this chapter relating to the determination of paternity apply to a
determination of maternity.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
SUBCHAPTER C. PARENT-CHILD RELATIONSHIP
§ 160.201. ESTABLISHMENT OF PARENT-CHILD
RELATIONSHIP. (a) The mother-child relationship is established
between a woman and a child by:
(1) the woman giving birth to the child;
(2) an adjudication of the woman's maternity; or
(3) the adoption of the child by the woman.
(b) The father-child relationship is established between a
man and a child by:
(1) an unrebutted presumption of the man's paternity
of the child under Section 160.204;
(2) an effective acknowledgment of paternity by the
man under Subchapter D, unless the acknowledgment has been
rescinded or successfully challenged;
(3) an adjudication of the man's paternity;
(4) the adoption of the child by the man; or
(5) the man's consenting to assisted reproduction by
his wife under Subchapter H, which resulted in the birth of the
child.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.202. NO DISCRIMINATION BASED ON MARITAL STATUS. A
child born to parents who are not married to each other has the same
rights under the law as a child born to parents who are married to
each other.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.203. CONSEQUENCES OF ESTABLISHMENT OF
PARENTAGE. Unless parental rights are terminated, a parent-child
relationship established under this chapter applies for all
purposes, except as otherwise provided by another law of this
state.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.204. PRESUMPTION OF PATERNITY. (a) A man is
presumed to be the father of a child if:
(1) he is married to the mother of the child and the
child is born during the marriage;
(2) he is married to the mother of the child and the
child is born before the 301st day after the date the marriage is
terminated by death, annulment, declaration of invalidity, or
divorce;
(3) he married the mother of the child before the birth
of the child in apparent compliance with law, even if the attempted
marriage is or could be declared invalid, and the child is born
during the invalid marriage or before the 301st day after the date
the marriage is terminated by death, annulment, declaration of
invalidity, or divorce;
(4) he married the mother of the child after the birth
of the child in apparent compliance with law, regardless of whether
the marriage is or could be declared invalid, he voluntarily
asserted his paternity of the child, and:
(A) the assertion is in a record filed with the
bureau of vital statistics;
(B) he is voluntarily named as the child's father
on the child's birth certificate; or
(C) he promised in a record to support the child
as his own; or
(5) during the first two years of the child's life, he
continuously resided in the household in which the child resided
and he represented to others that the child was his own.
(b) A presumption of paternity established under this
section may be rebutted only by:
(1) an adjudication under Subchapter G; or
(2) the filing of a valid denial of paternity by a
presumed father in conjunction with the filing by another person of
a valid acknowledgment of paternity as provided by Section 160.305.
Amended by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001; Acts 2003, 78th Leg., ch. 610, § 10, eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 1248, § 1, eff. Sept. 1, 2003.
SUBCHAPTER D. VOLUNTARY ACKNOWLEDGMENT OF PATERNITY
§ 160.301. ACKNOWLEDGMENT OF PATERNITY. The mother of a
child and a man claiming to be the biological father of the child
may sign an acknowledgment of paternity with the intent to
establish the man's paternity.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001. Amended by Acts 2003, 78th Leg., ch. 1248, § 2, eff. Sept.
1, 2003.
§ 160.302. EXECUTION OF ACKNOWLEDGMENT OF PATERNITY. (a)
An acknowledgment of paternity must:
(1) be in a record;
(2) be signed, or otherwise authenticated, under
penalty of perjury by the mother and the man seeking to establish
paternity;
(3) state that the child whose paternity is being
acknowledged:
(A) does not have a presumed father or has a
presumed father whose full name is stated; and
(B) does not have another acknowledged or
adjudicated father;
(4) state whether there has been genetic testing and,
if so, that the acknowledging man's claim of paternity is
consistent with the results of the testing; and
(5) state that the signatories understand that the
acknowledgment is the equivalent of a judicial adjudication of the
paternity of the child and that a challenge to the acknowledgment is
permitted only under limited circumstances and is barred after four
years.
(b) An acknowledgment of paternity is void if it:
(1) states that another man is a presumed father of the
child, unless a denial of paternity signed or otherwise
authenticated by the presumed father is filed with the bureau of
vital statistics;
(2) states that another man is an acknowledged or
adjudicated father of the child; or
(3) falsely denies the existence of a presumed,
acknowledged, or adjudicated father of the child.
(c) A presumed father may sign or otherwise authenticate an
acknowledgment of paternity.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.303. DENIAL OF PATERNITY. A presumed father of a
child may sign a denial of his paternity. The denial is valid only
if:
(1) an acknowledgment of paternity signed or otherwise
authenticated by another man is filed under Section 160.305;
(2) the denial is in a record and is signed or
otherwise authenticated under penalty of perjury; and
(3) the presumed father has not previously:
(A) acknowledged paternity of the child, unless
the previous acknowledgment has been rescinded under Section
160.307 or successfully challenged under Section 160.308; or
(B) been adjudicated to be the father of the
child.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.304. RULES FOR ACKNOWLEDGMENT AND DENIAL OF
PATERNITY. (a) An acknowledgment of paternity and a denial of
paternity may be contained in a single document or in different
documents and may be filed separately or simultaneously. If the
acknowledgment and denial are both necessary, neither document is
valid until both documents are filed.
(b) An acknowledgment of paternity or a denial of paternity
may be signed before the birth of the child.
(c) Subject to Subsection (a), an acknowledgment of
paternity or denial of paternity takes effect on the date of the
birth of the child or the filing of the document with the bureau of
vital statistics, whichever occurs later.
(d) An acknowledgment of paternity or denial of paternity
signed by a minor is valid if it otherwise complies with this
chapter.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.305. EFFECT OF ACKNOWLEDGMENT OR DENIAL OF
PATERNITY. (a) Except as provided by Sections 160.307 and 160.308,
a valid acknowledgment of paternity filed with the bureau of vital
statistics is the equivalent of an adjudication of the paternity of
a child and confers on the acknowledged father all rights and duties
of a parent.
(b) Except as provided by Sections 160.307 and 160.308, a
valid denial of paternity filed with the bureau of vital statistics
in conjunction with a valid acknowledgment of paternity is the
equivalent of an adjudication of the nonpaternity of the presumed
father and discharges the presumed father from all rights and
duties of a parent.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.306. FILING FEE NOT REQUIRED. The bureau of vital
statistics may not charge a fee for filing an acknowledgment of
paternity or denial of paternity.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.307. PROCEEDING FOR RESCISSION. A signatory may
rescind an acknowledgment of paternity or denial of paternity by
commencing a proceeding to rescind before the earlier of:
(1) the 60th day after the effective date of the
acknowledgment or denial, as provided by Section 160.304; or
(2) the date of the first hearing in a proceeding to
which the signatory is a party before a court to adjudicate an issue
relating to the child, including a proceeding that establishes
child support.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.308. CHALLENGE AFTER EXPIRATION OF PERIOD FOR
RESCISSION. (a) After the period for rescission under Section
160.307 has expired, a signatory of an acknowledgment of paternity
or denial of paternity may commence a proceeding to challenge the
acknowledgment or denial only on the basis of fraud, duress, or
material mistake of fact. The proceeding must be commenced before
the fourth anniversary of the date the acknowledgment or denial is
filed with the bureau of vital statistics unless the signatory was a
minor on the date the signatory executed the acknowledgment or
denial. If the signatory was a minor on the date the signatory
executed the acknowledgment or denial, the proceeding must be
commenced before the earlier of the fourth anniversary of the date
of:
(1) the signatory's 18th birthday; or
(2) the removal of the signatory's disabilities of
minority by court order, marriage, or by other operation of law.
(b) A party challenging an acknowledgment of paternity or
denial of paternity has the burden of proof.
(c) Notwithstanding any other provision of this chapter, a
collateral attack on an acknowledgment of paternity signed under
this chapter may not be maintained after the fourth anniversary of
the date the acknowledgment of paternity is filed with the bureau of
vital statistics unless the signatory was a minor on the date the
signatory executed the acknowledgment. If the signatory was a
minor on the date the signatory executed the acknowledgment, a
collateral attack on the acknowledgment of paternity may not be
maintained after the earlier of the fourth anniversary of the date
of:
(1) the signatory's 18th birthday; or
(2) the removal of the signatory's disabilities of
minority by court order, marriage, or by other operation of law.
(d) For purposes of Subsection (a), evidence that, based on
genetic testing, the man who is the signatory of an acknowledgement
of paternity is not rebuttably identified as the father of a child
in accordance with Section 160.505 constitutes a material mistake
of fact.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001. Amended by Acts 2005, 79th Leg., ch. 478, § 1, eff. Sept.
1, 2005.
§ 160.309. PROCEDURE FOR RESCISSION OR CHALLENGE. (a)
Each signatory to an acknowledgment of paternity and any related
denial of paternity must be made a party to a proceeding to rescind
or challenge the acknowledgment or denial of paternity.
(b) For purposes of the rescission of or a challenge to an
acknowledgment of paternity or denial of paternity, a signatory
submits to the personal jurisdiction of this state by signing the
acknowledgment or denial. The jurisdiction is effective on the
filing of the document with the bureau of vital statistics.
(c) Except for good cause shown, while a proceeding is
pending to rescind or challenge an acknowledgment of paternity or a
denial of paternity, the court may not suspend the legal
responsibilities of a signatory arising from the acknowledgment,
including the duty to pay child support.
(d) A proceeding to rescind or to challenge an
acknowledgment of paternity or a denial of paternity shall be
conducted in the same manner as a proceeding to adjudicate
parentage under Subchapter G.
(e) At the conclusion of a proceeding to rescind or
challenge an acknowledgment of paternity or a denial of paternity,
the court shall order the bureau of vital statistics to amend the
birth record of the child, if appropriate.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.310. RATIFICATION BARRED. A court or
administrative agency conducting a judicial or administrative
proceeding may not ratify an unchallenged acknowledgment of
paternity.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.311. FULL FAITH AND CREDIT. A court of this state
shall give full faith and credit to an acknowledgment of paternity
or a denial of paternity that is effective in another state if the
acknowledgment or denial has been signed and is otherwise in
compliance with the law of the other state.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.312. FORMS FOR ACKNOWLEDGMENT AND DENIAL OF
PATERNITY. (a) To facilitate compliance with this subchapter, the
bureau of vital statistics shall prescribe forms for the
acknowledgment of paternity and the denial of paternity.
(b) A valid acknowledgment of paternity or denial of
paternity is not affected by a later modification of the prescribed
form.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.313. RELEASE OF INFORMATION. The bureau of vital
statistics may release information relating to the acknowledgment
of paternity or denial of paternity to a signatory of the
acknowledgment or denial and to the courts and Title IV-D agency of
this or another state.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.314. ADOPTION OF RULES. The Title IV-D agency and
the bureau of vital statistics may adopt rules to implement this
subchapter.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.315. MEMORANDUM OF UNDERSTANDING. (a) The Title
IV-D agency and the bureau of vital statistics shall adopt a
memorandum of understanding governing the collection and transfer
of information for the voluntary acknowledgment of paternity.
(b) The Title IV-D agency and the bureau of vital statistics
shall review the memorandum semiannually and renew or modify the
memorandum as necessary.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
SUBCHAPTER E. REGISTRY OF PATERNITY
§ 160.401. ESTABLISHMENT OF REGISTRY. A registry of
paternity is established in the bureau of vital statistics.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.402. REGISTRATION FOR NOTIFICATION. (a) Except as
otherwise provided by Subsection (b), a man who desires to be
notified of a proceeding for the adoption of or the termination of
parental rights regarding a child that he may have fathered may
register with the registry of paternity:
(1) before the birth of the child; or
(2) not later than the 31st day after the date of the
birth of the child.
(b) A man is entitled to notice of a proceeding described by
Subsection (a) regardless of whether he registers with the registry
of paternity if:
(1) a father-child relationship between the man and
the child has been established under this chapter or another law;
or
(2) the man commences a proceeding to adjudicate his
paternity before the court has terminated his parental rights.
(c) A registrant shall promptly notify the registry in a
record of any change in the information provided by the registrant.
The bureau of vital statistics shall incorporate all new
information received into its records but is not required to
affirmatively seek to obtain current information for incorporation
in the registry.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.403. NOTICE OF PROCEEDING. Notice of a proceeding
to adopt or to terminate parental rights regarding a child must be
given to a registrant who has timely registered with regard to that
child. Notice must be given in a manner prescribed for service of
process in a civil action.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.404. TERMINATION OF PARENTAL RIGHTS: FAILURE TO
REGISTER. The parental rights of a man alleged to be the father of
a child may be terminated without notice as provided by Section
161.002 if the man:
(1) did not timely register with the bureau of vital
statistics; and
(2) is not entitled to notice under Section 160.402 or
161.002.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.411. REQUIRED FORM. The bureau of vital statistics
shall adopt a form for registering with the registry. The form must
require the signature of the registrant. The form must state that:
(1) the form is signed under penalty of perjury;
(2) a timely registration entitles the registrant to
notice of a proceeding for adoption of the child or for termination
of the registrant's parental rights;
(3) a timely registration does not commence a
proceeding to establish paternity;
(4) the information disclosed on the form may be used
against the registrant to establish paternity;
(5) services to assist in establishing paternity are
available to the registrant through the support enforcement agency;
(6) the registrant should also register in another
state if the conception or birth of the child occurred in the other
state;
(7) information on registries in other states is
available from the bureau of vital statistics; and
(8) procedures exist to rescind the registration of a
claim of paternity.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.412. FURNISHING OF INFORMATION;
CONFIDENTIALITY. (a) The bureau of vital statistics is not
required to attempt to locate the mother of a child who is the
subject of a registration. The bureau of vital statistics shall
send a copy of the notice of the registration to a mother who has
provided an address.
(b) Information contained in the registry is confidential
and may be released on request only to:
(1) a court or a person designated by the court;
(2) the mother of the child who is the subject of the
registration;
(3) an agency authorized by another law to receive the
information;
(4) a licensed child-placing agency;
(5) a support enforcement agency;
(6) a party, or the party's attorney of record, to a
proceeding under this chapter or a proceeding to adopt or to
terminate parental rights regarding a child who is the subject of
the registration; and
(7) the registry of paternity in another state.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.413. OFFENSE: UNAUTHORIZED RELEASE OF
INFORMATION. (a) A person commits an offense if the person
intentionally releases information from the registry of paternity
to another person, including an agency, that is not authorized to
receive the information under Section 160.412.
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.414. RESCISSION OF REGISTRATION. A registrant may
rescind his registration at any time by sending to the registry a
rescission in a record or another manner authenticated by him and
witnessed or notarized.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.415. UNTIMELY REGISTRATION. If a man registers
later than the 30th day after the date of the birth of the child, the
bureau of vital statistics shall notify the registrant that the
registration was not timely filed.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.416. FEES FOR REGISTRY. (a) A fee may not be
charged for filing a registration or to rescind a registration.
(b) Except as otherwise provided by Subsection (c), the
bureau of vital statistics may charge a reasonable fee for making a
search of the registry and for furnishing a certificate.
(c) A support enforcement agency is not required to pay a
fee authorized by Subsection (b).
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.421. SEARCH OF APPROPRIATE REGISTRY. (a) If a
father-child relationship has not been established under this
chapter, a petitioner for the adoption of or the termination of
parental rights regarding the child must obtain a certificate of
the results of a search of the registry.
(b) If the petitioner for the adoption of or the termination
of parental rights regarding a child has reason to believe that the
conception or birth of the child may have occurred in another state,
the petitioner must obtain a certificate of the results of a search
of the paternity registry, if any, in the other state.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.422. CERTIFICATE OF SEARCH OF REGISTRY. (a) The
bureau of vital statistics shall furnish a certificate of the
results of a search of the registry on request by an individual, a
court, or an agency listed in Section 160.412(b).
(b) The certificate of the results of a search must be
signed on behalf of the bureau and state that:
(1) a search has been made of the registry; and
(2) a registration containing the information
required to identify the registrant:
(A) has been found and is attached to the
certificate; or
(B) has not been found.
(c) A petitioner must file the certificate of the results of
a search of the registry with the court before a proceeding for the
adoption of or termination of parental rights regarding a child may
be concluded.
(d) A search of the registry is not required if the only man
alleged to be the father of the child has signed a waiver of
interest in, or relinquishment of parental rights with regard to,
the child.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.423. ADMISSIBILITY OF CERTIFICATE. A certificate
of the results of a search of the registry in this state or of a
paternity registry in another state is admissible in a proceeding
for the adoption of or the termination of parental rights regarding
a child and, if relevant, in other legal proceedings.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
SUBCHAPTER F. GENETIC TESTING
§ 160.501. APPLICATION OF SUBCHAPTER. This subchapter
governs genetic testing of an individual to determine parentage,
regardless of whether the individual:
(1) voluntarily submits to testing; or
(2) is tested under an order of a court or a support
enforcement agency.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.502. ORDER FOR TESTING. (a) Except as otherwise
provided by this subchapter and by Subchapter G, a court shall order
a child and other designated individuals to submit to genetic
testing if the request is made by a party to a proceeding to
determine parentage.
(b) 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 in utero testing.
(c) If two or more men are subject to court-ordered genetic
testing, the testing may be ordered concurrently or sequentially.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.503. REQUIREMENTS FOR GENETIC TESTING. (a) Genetic
testing must be of a type reasonably relied on by experts in the
field of genetic testing. The testing must be performed in a
testing laboratory accredited by:
(1) the American Association of Blood Banks, or a
successor to its functions;
(2) the American Society for Histocompatibility and
Immunogenetics, or a successor to its functions; or
(3) an accrediting body designated by the federal
secretary of health and human services.
(b) A specimen used in genetic testing may consist of one or
more samples, or a combination of samples, of blood, buccal cells,
bone, hair, or other body tissue or fluid. The specimen used in the
testing is not required to be of the same kind for each individual
undergoing genetic testing.
(c) Based on the ethnic or racial group of an individual,
the testing laboratory shall determine the databases from which to
select frequencies for use in the calculation of the probability of
paternity of the individual. If there is disagreement as to the
testing laboratory's choice:
(1) the objecting individual may require the testing
laboratory, not later than the 30th day after the date of receipt of
the report of the test, to recalculate the probability of paternity
using an ethnic or racial group different from that used by the
laboratory;
(2) the individual objecting to the testing
laboratory's initial choice shall:
(A) if the frequencies are not available to the
testing laboratory for the ethnic or racial group requested,
provide the requested frequencies compiled in a manner recognized
by accrediting bodies; or
(B) engage another testing laboratory to perform
the calculations; and
(3) the testing laboratory may use its own statistical
estimate if there is a question regarding which ethnic or racial
group is appropriate and, if available, shall calculate the
frequencies using statistics for any other ethnic or racial group
requested.
(d) If, after recalculation using a different ethnic or
racial group, genetic testing does not rebuttably identify a man as
the father of a child under Section 160.505, an individual who has
been tested may be required to submit to additional genetic
testing.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.504. REPORT OF GENETIC TESTING. (a) A report of the
results of genetic testing must be in a record and signed under
penalty of perjury by a designee of the testing laboratory. A
report made under the requirements of this subchapter is
self-authenticating.
(b) Documentation from the testing laboratory is sufficient
to establish a reliable chain of custody that allows the results of
genetic testing to be admissible without testimony if the
documentation includes:
(1) the name and photograph of each individual whose
specimens have been taken;
(2) the name of each individual who collected the
specimens;
(3) the places in which the specimens were collected
and the date of each collection;
(4) the name of each individual who received the
specimens in the testing laboratory; and
(5) the dates the specimens were received.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.505. GENETIC TESTING RESULTS; REBUTTAL. (a) A man
is rebuttably identified as the father of a child under this chapter
if the genetic testing complies with this subchapter and the
results disclose:
(1) that the man has at least a 99 percent probability
of paternity, using a prior probability of 0.5, as calculated by
using the combined paternity index obtained in the testing; and
(2) a combined paternity index of at least 100 to 1.
(b) A man identified as the father of a child under
Subsection (a) may rebut the genetic testing results only by
producing other genetic testing satisfying the requirements of this
subchapter that:
(1) excludes the man as a genetic father of the child;
or
(2) identifies another man as the possible father of
the child.
(c) Except as otherwise provided by Section 160.510, if more
than one man is identified by genetic testing as the possible father
of the child, the court shall order each man to submit to further
genetic testing to identify the genetic father.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.506. COSTS OF GENETIC TESTING. (a) Subject to the
assessment of costs under Subchapter G, the cost of initial genetic
testing must be advanced:
(1) by a support enforcement agency, if the agency is
providing services in the proceeding;
(2) by the individual who made the request;
(3) as agreed by the parties; or
(4) as ordered by the court.
(b) In cases in which the cost of genetic testing is
advanced by the support enforcement agency, the agency may seek
reimbursement from a man who is rebuttably identified as the
father.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.507. ADDITIONAL GENETIC TESTING. The court or the
support enforcement agency shall order additional genetic testing
on the request of a party who contests the result of the original
testing. If the previous genetic testing identified a man as the
father of the child under Section 160.505, the court or agency may
not order additional testing unless the party provides advance
payment for the testing.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.508. GENETIC TESTING WHEN ALL INDIVIDUALS NOT
AVAILABLE. (a) Subject to Subsection (b), if a genetic testing
specimen for good cause and under circumstances the court considers
to be just is not available from a man who may be the father of a
child, a court may order the following individuals to submit
specimens for genetic testing:
(1) the parents of the man;
(2) any brothers or sisters of the man;
(3) any other children of the man and their mothers;
and
(4) other relatives of the man necessary to complete
genetic testing.
(b) A court may not render an order under this section
unless the court finds that the need for genetic testing outweighs
the legitimate interests of the individual sought to be tested.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.509. DECEASED INDIVIDUAL. For good cause shown,
the court may order genetic testing of a deceased individual.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.510. IDENTICAL BROTHERS. (a) The court may order
genetic testing of a brother of a man identified as the father of a
child if the man is commonly believed to have an identical brother
and evidence suggests that the brother may be the genetic father of
the child.
(b) If each brother satisfies the requirements of Section
160.505 for being the identified father of the child and there is
not another identical brother being identified as the father of the
child, the court may rely on nongenetic evidence to adjudicate
which brother is the father of the child.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.511. OFFENSE: UNAUTHORIZED RELEASE OF
SPECIMEN. (a) A person commits an offense if the person
intentionally releases an identifiable specimen of another person
for any purpose not relevant to the parentage proceeding and
without a court order or the written permission of the person who
furnished the specimen.
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
SUBCHAPTER G. PROCEEDING TO ADJUDICATE PARENTAGE
§ 160.601. PROCEEDING AUTHORIZED; RULES OF
PROCEDURE. (a) A civil proceeding may be maintained to adjudicate
the parentage of a child.
(b) The proceeding is governed by the Texas Rules of Civil
Procedure.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.602. STANDING TO MAINTAIN PROCEEDING. (a) Subject
to Subchapter D and Sections 160.607 and 160.609 and except as
provided by Subsection (b), a proceeding to adjudicate parentage
may be maintained by:
(1) the child;
(2) the mother of the child;
(3) a man whose paternity of the child is to be
adjudicated;
(4) the support enforcement agency or another
government agency authorized by other law;
(5) an authorized adoption agency or licensed
child-placing agency;
(6) a representative authorized by law to act for an
individual who would otherwise be entitled to maintain a proceeding
but who is deceased, is incapacitated, or is a minor;
(7) a person related within the second degree by
consanguinity to the mother of the child, if the mother is deceased;
or
(8) a person who is an intended parent.
(b) After the date a child having no presumed, acknowledged,
or adjudicated father becomes an adult, a proceeding to adjudicate
the parentage of the adult child may only be maintained by the adult
child.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001. Amended by Acts 2003, 78th Leg., ch. 457, § 1, eff. Sept.
1, 2003; Acts 2003, 78th Leg., ch. 1248, § 3, eff. Sept. 1, 2003.
§ 160.603. NECESSARY PARTIES TO PROCEEDING. The
following individuals must be joined as parties in a proceeding to
adjudicate parentage:
(1) the mother of the child; and
(2) a man whose paternity of the child is to be
adjudicated.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.604. PERSONAL JURISDICTION. (a) An individual may
not be adjudicated to be a parent unless the court has personal
jurisdiction over the individual.
(b) A court of this state having jurisdiction to adjudicate
parentage may exercise personal jurisdiction over a nonresident
individual or the guardian or conservator of the individual if the
conditions in Section 159.201 are satisfied.
(c) Lack of jurisdiction over one individual does not
preclude the court from making an adjudication of parentage binding
on another individual over whom the court has personal
jurisdiction.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.605. VENUE. Venue for a proceeding to adjudicate
parentage is in the county of this state in which:
(1) the child resides or is found;
(2) the respondent resides or is found if the child
does not reside in this state; or
(3) a proceeding for probate or administration of the
presumed or alleged father's estate has been commenced.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.606. NO TIME LIMITATION: CHILD HAVING NO PRESUMED,
ACKNOWLEDGED, OR ADJUDICATED FATHER. 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.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.607. TIME LIMITATION: CHILD HAVING PRESUMED
FATHER. (a) Except as otherwise provided by Subsection (b), a
proceeding brought by a presumed father, the mother, or another
individual to adjudicate the parentage of a child having a presumed
father shall be commenced not later than the fourth anniversary of
the date of the birth of the child.
(b) A proceeding seeking to disprove the father-child
relationship between a child and the child's presumed father may be
maintained at any time if the court determines that:
(1) the presumed father and the mother of the child did
not live together or engage in sexual intercourse with each other
during the probable time of conception; and
(2) the presumed father never represented to others
that the child was his own.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001. Amended by Acts 2003, 78th Leg., ch. 1248, § 4, eff. Sept.
1, 2003.
§ 160.608. AUTHORITY TO DENY MOTION FOR GENETIC
TESTING. (a) In a proceeding to adjudicate parentage, a court may
deny a motion for an order for the genetic testing of the mother,
the child, and the presumed father if the court determines that:
(1) the conduct of the mother or the presumed father
estops that party from denying parentage; and
(2) it would be inequitable to disprove the
father-child relationship between the child and the presumed
father.
(b) In determining whether to deny a motion for an order for
genetic testing under this section, the court shall consider the
best interest of the child, including the following factors:
(1) the length of time between the date of the
proceeding to adjudicate parentage and the date the presumed father
was placed on notice that he might not be the genetic father;
(2) the length of time during which the presumed
father has assumed the role of father of the child;
(3) the facts surrounding the presumed father's
discovery of his possible nonpaternity;
(4) the nature of the relationship between the child
and the presumed father;
(5) the age of the child;
(6) any harm that may result to the child if presumed
paternity is successfully disproved;
(7) the nature of the relationship between the child
and the alleged father;
(8) the extent to which the passage of time reduces the
chances of establishing the paternity of another man and a child
support obligation in favor of the child; and
(9) other factors that may affect the equities arising
from the disruption of the father-child relationship between the
child and the presumed father or the chance of other harm to the
child.
(c) In a proceeding involving the application of this
section, a child who is a minor or is incapacitated must be
represented by an amicus attorney or attorney ad litem.
(d) A denial of a motion for an order for genetic testing
must be based on clear and convincing evidence.
(e) If the court denies a motion for an order for genetic
testing, the court shall issue an order adjudicating the presumed
father to be the father of the child.
(f) This section applies to a proceeding to rescind or
challenge an acknowledgment of paternity or a denial of paternity
as provided by Section 160.309(d).
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001. Amended by Acts 2003, 78th Leg., ch. 1248, § 5, eff. Sept.
1, 2003; Acts 2005, 79th Leg., ch. 172, § 17, eff. Sept. 1, 2005.
§ 160.609. TIME LIMITATION: CHILD HAVING ACKNOWLEDGED OR
ADJUDICATED FATHER. (a) If a child has an acknowledged father, a
signatory to the acknowledgment or denial of paternity may commence
a proceeding seeking to rescind the acknowledgment or denial or to
challenge the paternity of the child only within the time allowed
under Section 160.307 or 160.308.
(b) If a child has an acknowledged father or an adjudicated
father, an individual, other than the child, who is not a signatory
to the acknowledgment or a party to the adjudication and who seeks
an adjudication of paternity of the child must commence a
proceeding not later than the fourth anniversary of the effective
date of the acknowledgment or adjudication.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.610. JOINDER OF PROCEEDINGS. (a) Except as
provided by Subsection (b), a proceeding to adjudicate parentage
may be joined with a proceeding for adoption, termination of
parental rights, possession of or access to a child, child support,
divorce, annulment, or probate or administration of an estate or
another appropriate proceeding.
(b) A respondent may not join a proceeding described by
Subsection (a) with a proceeding to adjudicate parentage brought
under Chapter 159.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.611. PROCEEDINGS BEFORE BIRTH. (a) A proceeding to
determine parentage commenced before the birth of the child may not
be concluded until after the birth of the child.
(b) In a proceeding described by Subsection (a), the
following actions may be taken before the birth of the child:
(1) service of process;
(2) discovery; and
(3) except as prohibited by Section 160.502,
collection of specimens for genetic testing.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.612. CHILD AS PARTY; REPRESENTATION. (a) A minor
child is a permissible party, but is not a necessary party to a
proceeding under this subchapter.
(b) The court shall appoint an amicus attorney or attorney
ad litem to represent a child who is a minor or is incapacitated if
the child is a party or the court finds that the interests of the
child are not adequately represented.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001. Amended by Acts 2005, 79th Leg., ch. 172, § 18, eff. Sept.
1, 2005.
§ 160.621. ADMISSIBILITY OF RESULTS OF GENETIC TESTING;
EXPENSES. (a) Except as otherwise provided by Subsection (c), a
report of a genetic testing expert is admissible as evidence of the
truth of the facts asserted in the report. The admissibility of the
report is not affected by whether the testing was performed:
(1) voluntarily or under an order of the court or a
support enforcement agency; or
(2) before or after the date of commencement of the
proceeding.
(b) A party objecting to the results of genetic testing may
call one or more genetic testing experts to testify in person or by
telephone, videoconference, deposition, or another method approved
by the court. Unless otherwise ordered by the court, the party
offering the testimony bears the expense for the expert testifying.
(c) If a child has a presumed, acknowledged, or adjudicated
father, the results of genetic testing are inadmissible to
adjudicate parentage unless performed:
(1) with the consent of both the mother and the
presumed, acknowledged, or adjudicated father; or
(2) under an order of the court under Section 160.502.
(d) Copies of bills for genetic testing and for prenatal and
postnatal health care for the mother and child that are furnished to
the adverse party on or before the 10th day before the date of a
hearing are admissible to establish:
(1) the amount of the charges billed; and
(2) that the charges were reasonable, necessary, and
customary.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.622. CONSEQUENCES OF DECLINING GENETIC
TESTING. (a) An order for genetic testing is enforceable by
contempt.
(b) A court may adjudicate parentage contrary to the
position of an individual whose paternity is being determined on
the grounds that the individual declines to submit to genetic
testing as ordered by the court.
(c) Genetic testing of the mother of a child is not a
prerequisite to testing the child and a man whose paternity is being
determined. If the mother is unavailable or declines to submit to
genetic testing, the court may order the testing of the child and
each man whose paternity is being adjudicated.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.623. ADMISSION OF PATERNITY AUTHORIZED. (a) A
respondent in a proceeding to adjudicate parentage may admit to the
paternity of a child by filing a pleading to that effect or by
admitting paternity under penalty of perjury when making an
appearance or during a hearing.
(b) If the court finds that the admission of paternity
satisfies the requirements of this section and that there is no
reason to question the admission, the court shall render an order
adjudicating the child to be the child of the man admitting
paternity.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.624. TEMPORARY ORDER. (a) In a proceeding under
this subchapter, the court shall render a temporary order for child
support for a child if the order is appropriate and the individual
ordered to pay child support:
(1) is a presumed father of the child;
(2) is petitioning to have his paternity adjudicated;
(3) is identified as the father through genetic
testing under Section 160.505;
(4) is an alleged father who has declined to submit to
genetic testing;
(5) is shown by clear and convincing evidence to be the
father of the child; or
(6) is the mother of the child.
(b) A temporary order may include provisions for the
possession of or access to the child as provided by other laws of
this state.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.631. RULES FOR ADJUDICATION OF PATERNITY. (a) The
court shall apply the rules stated in this section to adjudicate the
paternity of a child.
(b) The paternity of a child having a presumed,
acknowledged, or adjudicated father may be disproved only by
admissible results of genetic testing excluding that man as the
father of the child or identifying another man as the father of the
child.
(c) Unless the results of genetic testing are admitted to
rebut other results of genetic testing, the man identified as the
father of a child under Section 160.505 shall be adjudicated as
being the father of the child.
(d) Unless the results of genetic testing are admitted to
rebut other results of genetic testing, a man excluded as the father
of a child by genetic testing shall be adjudicated as not being the
father of the child.
(e) If the court finds that genetic testing under Section
160.505 does not identify or exclude a man as the father of a child,
the court may not dismiss the proceeding. In that event, the
results of genetic testing and other evidence are admissible to
adjudicate the issue of paternity.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.632. JURY PROHIBITED. The court shall adjudicate
paternity of a child without a jury.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.633. HEARINGS; INSPECTION OF RECORDS. (a) A
proceeding under this subchapter is open to the public as in other
civil cases.
(b) Papers and records in a proceeding under this subchapter
are available for public inspection.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001. Amended by Acts 2003, 78th Leg., ch. 610, § 11, eff. Sept.
1, 2003.
§ 160.634. ORDER ON DEFAULT. The court shall issue an
order adjudicating the paternity of a man who:
(1) after service of process, is in default; and
(2) is found by the court to be the father of a child.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.635. DISMISSAL FOR WANT OF PROSECUTION. The court
may issue an order dismissing a proceeding commenced under this
chapter for want of prosecution only without prejudice. An order of
dismissal for want of prosecution purportedly with prejudice is
void and has only the effect of a dismissal without prejudice.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.636. ORDER ADJUDICATING PARENTAGE; COSTS. (a) The
court shall render an order adjudicating whether a man alleged or
claiming to be the father is the parent of the child.
(b) An order adjudicating parentage must identify the child
by name and date of birth.
(c) Except as otherwise provided by Subsection (d), the
court may assess filing fees, reasonable attorney's fees, fees for
genetic testing, other costs, and necessary travel and other
reasonable expenses incurred in a proceeding under this subchapter.
Attorney's fees awarded by the court may be paid directly to the
attorney. An attorney who is awarded attorney's fees may enforce
the order in the attorney's own name.
(d) The court may not assess fees, costs, or expenses
against the support enforcement agency of this state or another
state, except as provided by other law.
(e) On request of a party and for good cause shown, the court
may order that the name of the child be changed.
(f) If the order of the court is at variance with the child's
birth certificate, the court shall order the bureau of vital
statistics to issue an amended birth record.
(g) On a finding of parentage, the court may order
retroactive child support as provided by Chapter 154 and, on a
proper showing, order a party to pay an equitable portion of all of
the prenatal and postnatal health care expenses of the mother and
the child.
(h) In rendering an order for retroactive child support
under this section, the court shall use the child support
guidelines provided by Chapter 154, together with any relevant
factors.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
Amendment by Acts 2001, 77th Leg., ch. 1023, § 45
Acts 2001, 77th Leg., ch. 392, § 2 and Acts 2001, 77th Leg., ch.
1023, § 45 purported to amended V.T.C.A., Family Code §
160.005(b) [now this section] without reference to the deletion of
that section by Acts 2001, 77th Leg., ch. 821, § 1.01. As so
amended, § 160.005(b) read:
"Except as provided under Section 154.131, on a finding of
parentage, the court may order support retroactive to the time of
the birth of the child and, on a proper showing, may order a party to
pay an equitable portion of all prenatal and postnatal health care
expenses of the mother and child."
§ 160.637. BINDING EFFECT OF DETERMINATION OF
PARENTAGE. (a) Except as otherwise provided by Subsection (b) or
Section 160.316, a determination of parentage is binding on:
(1) all signatories to an acknowledgment or denial of
paternity as provided by Subchapter D; and
(2) all parties to an adjudication by a court acting
under circumstances that satisfy the jurisdictional requirements
of Section 159.201.
(b) A child is not bound by a determination of parentage
under this chapter unless:
(1) the determination was based on an unrescinded
acknowledgment of paternity and the acknowledgment is consistent
with the results of genetic testing;
(2) the adjudication of parentage was based on a
finding consistent with the results of genetic testing and the
consistency is declared in the determination or is otherwise shown;
or
(3) the child was a party or was represented in the
proceeding determining parentage by an attorney ad litem.
(c) In a proceeding to dissolve a marriage, the court is
considered to have made an adjudication of the parentage of a child
if the court acts under circumstances that satisfy the
jurisdictional requirements of Section 159.201, and the final
order:
(1) expressly identifies the child as "a child of the
marriage" or "issue of the marriage" or uses similar words
indicating that the husband is the father of the child; or
(2) provides for the payment of child support for the
child by the husband unless paternity is specifically disclaimed in
the order.
(d) Except as otherwise provided by Subsection (b), a
determination of parentage may be a defense in a subsequent
proceeding seeking to adjudicate parentage by an individual who was
not a party to the earlier proceeding.
(e) A party to an adjudication of paternity may challenge
the adjudication only under the laws of this state relating to
appeal, the vacating of judgments, or other judicial review.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
SUBCHAPTER H. CHILD OF ASSISTED REPRODUCTION
§ 160.701. SCOPE OF SUBCHAPTER. This subchapter applies
only to a child conceived by means of assisted reproduction.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.702. PARENTAL STATUS OF DONOR. A donor is not a
parent of a child conceived by means of assisted reproduction.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.703. HUSBAND'S PATERNITY OF CHILD OF ASSISTED
REPRODUCTION. If a husband provides sperm for or consents to
assisted reproduction by his wife as provided by Section 160.704,
he is the father of a resulting child.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.704. CONSENT TO ASSISTED REPRODUCTION. (a) Consent
by a married woman to assisted reproduction must be in a record
signed by the woman and her husband. This requirement does not
apply to the donation of eggs by a married woman for assisted
reproduction by another woman.
(b) Failure by the husband to sign a consent required by
Subsection (a) before or after the birth of the child does not
preclude a finding that the husband is the father of a child born to
his wife if the wife and husband openly treated the child as their
own.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.705. LIMITATION ON HUSBAND'S DISPUTE OF
PATERNITY. (a) Except as otherwise provided by Subsection (b), the
husband of a wife who gives birth to a child by means of assisted
reproduction may not challenge his paternity of the child unless:
(1) before the fourth anniversary of the date of
learning of the birth of the child he commences a proceeding to
adjudicate his paternity; and
(2) the court finds that he did not consent to the
assisted reproduction before or after the birth of the child.
(b) A proceeding to adjudicate paternity may be maintained
at any time if the court determines that:
(1) the husband did not provide sperm for or, before or
after the birth of the child, consent to assisted reproduction by
his wife;
(2) the husband and the mother of the child have not
cohabited since the probable time of assisted reproduction; and
(3) the husband never openly treated the child as his
own.
(c) The limitations provided by this section apply to a
marriage declared invalid after assisted reproduction.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.706. EFFECT OF DISSOLUTION OF MARRIAGE. (a) If a
marriage is dissolved before the placement of eggs, sperm, or
embryos, the former spouse is not a parent of the resulting child
unless the former spouse consented in a record that if assisted
reproduction were to occur after a divorce the former spouse would
be a parent of the child.
(b) The consent of a former spouse to assisted reproduction
may be withdrawn by that individual in a record at any time before
the placement of eggs, sperm, or embryos.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
§ 160.707. PARENTAL STATUS OF DECEASED SPOUSE. If a
spouse dies before the placement of eggs, sperm, or embryos, the
deceased spouse is not a parent of the resulting child unless the
deceased spouse consented in a record that if assisted reproduction
were to occur after death the deceased spouse would be a parent of
the child.
Added by Acts 2001, 77th Leg., ch. 821, § 1.01, eff. June 14,
2001.
SUBCHAPTER I. GESTATIONAL AGREEMENTS
§ 160.751. DEFINITION. In this subchapter, "gestational
mother" means a woman who gives birth to a child conceived under a
gestational agreement.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.752. SCOPE OF SUBCHAPTER; CHOICE OF LAW. (a)
Notwithstanding any other provision of this chapter or another law,
this subchapter authorizes an agreement between a woman and the
intended parents of a child in which the woman relinquishes all
rights as a parent of a child conceived by means of assisted
reproduction and that provides that the intended parents become the
parents of the child.
(b) This subchapter controls over any other law with respect
to a child conceived under a gestational agreement under this
subchapter.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.753. ESTABLISHMENT OF PARENT-CHILD
RELATIONSHIP. (a) Notwithstanding any other provision of this
chapter or another law, the mother-child relationship exists
between a woman and a child by an adjudication confirming the woman
as a parent of the child born to a gestational mother under a
gestational agreement if the gestational agreement is validated
under this subchapter or enforceable under other law, regardless of
the fact that the gestational mother gave birth to the child.
(b) The father-child relationship exists between a child
and a man by an adjudication confirming the man as a parent of the
child born to a gestational mother under a gestational agreement if
the gestational agreement is validated under this subchapter or
enforceable under other law.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.754. GESTATIONAL AGREEMENT AUTHORIZED. (a) A
prospective gestational mother, her husband if she is married, each
donor, and each intended parent may enter into a written agreement
providing that:
(1) the prospective gestational mother agrees to
pregnancy by means of assisted reproduction;
(2) the prospective gestational mother, her husband if
she is married, and each donor other than the intended parents, if
applicable, relinquish all parental rights and duties with respect
to a child conceived through assisted reproduction;
(3) the intended parents will be the parents of the
child; and
(4) the gestational mother and each intended parent
agree to exchange throughout the period covered by the agreement
all relevant information regarding the health of the gestational
mother and each intended parent.
(b) The intended parents must be married to each other.
Each intended parent must be a party to the gestational agreement.
(c) The gestational agreement must require that the eggs
used in the assisted reproduction procedure be retrieved from an
intended parent or a donor. The gestational mother's eggs may not
be used in the assisted reproduction procedure.
(d) The gestational agreement must state that the physician
who will perform the assisted reproduction procedure as provided by
the agreement has informed the parties to the agreement of:
(1) the rate of successful conceptions and births
attributable to the procedure, including the most recent published
outcome statistics of the procedure at the facility at which it will
be performed;
(2) the potential for and risks associated with the
implantation of multiple embryos and consequent multiple births
resulting from the procedure;
(3) the nature of and expenses related to the
procedure;
(4) the health risks associated with, as applicable,
fertility drugs used in the procedure, egg retrieval procedures,
and egg or embryo transfer procedures; and
(5) reasonably foreseeable psychological effects
resulting from the procedure.
(e) The parties to a gestational agreement must enter into
the agreement before the 14th day preceding the date the transfer of
eggs, sperm, or embryos to the gestational mother occurs for the
purpose of conception or implantation.
(f) A gestational agreement does not apply to the birth of a
child conceived by means of sexual intercourse.
(g) A gestational agreement may not limit the right of the
gestational mother to make decisions to safeguard her health or the
health of an embryo.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.755. PETITION TO VALIDATE GESTATIONAL
AGREEMENT. (a) The intended parents and the prospective
gestational mother under a gestational agreement may commence a
proceeding to validate the agreement.
(b) A person may maintain a proceeding to validate a
gestational agreement only if:
(1) the prospective gestational mother or the intended
parents have resided in this state for the 90 days preceding the
date the proceeding is commenced;
(2) the prospective gestational mother's husband, if
she is married, is joined as a party to the proceeding; and
(3) a copy of the gestational agreement is attached to
the petition.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.756. HEARING TO VALIDATE GESTATIONAL
AGREEMENT. (a) A gestational agreement must be validated as
provided by this section.
(b) The court may validate a gestational agreement as
provided by Subsection (c) only if the court finds that:
(1) the parties have submitted to the jurisdiction of
the court under the jurisdictional standards of this chapter;
(2) the medical evidence provided shows that the
intended mother is unable to carry a pregnancy to term and give
birth to the child or is unable to carry the pregnancy to term and
give birth to the child without unreasonable risk to her physical or
mental health or to the health of the unborn child;
(3) unless waived by the court, an agency or other
person has conducted a home study of the intended parents and has
determined that the intended parents meet the standards of fitness
applicable to adoptive parents;
(4) each party to the agreement has voluntarily
entered into and understands the terms of the agreement;
(5) the prospective gestational mother has had at
least one previous pregnancy and delivery and carrying another
pregnancy to term and giving birth to another child would not pose
an unreasonable risk to the child's health or the physical or mental
health of the prospective gestational mother; and
(6) the parties have adequately provided for which
party is responsible for all reasonable health care expenses
associated with the pregnancy, including providing for who is
responsible for those expenses if the agreement is terminated.
(c) If the court finds that the requirements of Subsection
(b) are satisfied, the court may render an order validating the
gestational agreement and declaring that the intended parents will
be the parents of a child born under the agreement.
(d) The court may validate the gestational agreement at the
court's discretion. The court's determination of whether to
validate the agreement is subject to review only for abuse of
discretion.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.757. INSPECTION OF RECORDS. The proceedings,
records, and identities of the parties to a gestational agreement
under this subchapter are subject to inspection under the same
standards of confidentiality that apply to an adoption under the
laws of this state.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.758. CONTINUING, EXCLUSIVE JURISDICTION. Subject
to Section 152.201, a court that conducts a proceeding under this
subchapter has continuing, exclusive jurisdiction of all matters
arising out of the gestational agreement until the date a child born
to the gestational mother during the period covered by the
agreement reaches 180 days of age.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.759. TERMINATION OF GESTATIONAL AGREEMENT. (a)
Before a prospective gestational mother becomes pregnant by means
of assisted reproduction, the prospective gestational mother, her
husband if she is married, or either intended parent may terminate a
gestational agreement validated under Section 160.756 by giving
written notice of the termination to each other party to the
agreement.
(b) A person who terminates a gestational agreement under
Subsection (a) shall file notice of the termination with the court.
A person having the duty to notify the court who does not notify the
court of the termination of the agreement is subject to appropriate
sanctions.
(c) On receipt of the notice of termination, the court shall
vacate the order rendered under Section 160.756 validating the
gestational agreement.
(d) A prospective gestational mother and her husband, if she
is married, may not be liable to an intended parent for terminating
a gestational agreement if the termination is in accordance with
this section.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.760. PARENTAGE UNDER VALIDATED GESTATIONAL
AGREEMENT. (a) On the birth of a child to a gestational mother
under a validated gestational agreement, the intended parents shall
file a notice of the birth with the court not later than the 300th
day after the date assisted reproduction occurred.
(b) After receiving notice of the birth, the court shall
render an order that:
(1) confirms that the intended parents are the child's
parents;
(2) requires the gestational mother to surrender the
child to the intended parents, if necessary; and
(3) requires the bureau of vital statistics to issue a
birth certificate naming the intended parents as the child's
parents.
(c) If a person alleges that a child born to a gestational
mother did not result from assisted reproduction, the court shall
order that scientifically accepted parentage testing be conducted
to determine the child's parentage.
(d) If the intended parents fail to file the notice required
by Subsection (a), the gestational mother or an appropriate state
agency may file the notice required by that subsection. On a
showing that an order validating the gestational agreement was
rendered in accordance with Section 160.756, the court shall order
that the intended parents are the child's parents and are
financially responsible for the child.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
Amended by Acts 2005, 79th Leg., ch. 916, § 22, eff. June 18,
2005.
§ 160.761. EFFECT OF GESTATIONAL MOTHER'S MARRIAGE AFTER
VALIDATION OF AGREEMENT. If a gestational mother is married after
the court renders an order validating a gestational agreement under
this subchapter:
(1) the validity of the gestational agreement is not
affected;
(2) the gestational mother's husband is not required
to consent to the agreement; and
(3) the gestational mother's husband is not a presumed
father of the child born under the terms of the agreement.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.762. EFFECT OF GESTATIONAL AGREEMENT THAT IS NOT
VALIDATED. (a) A gestational agreement that is not validated as
provided by this subchapter is unenforceable, regardless of whether
the agreement is in a record.
(b) The parent-child relationship of a child born under a
gestational agreement that is not validated as provided by this
subchapter is determined as otherwise provided by this chapter.
(c) A party to a gestational agreement that is not validated
as provided by this subchapter who is an intended parent under the
agreement may be held liable for the support of a child born under
the agreement, even if the agreement is otherwise unenforceable.
(d) The court may assess filing fees, reasonable attorney's
fees, fees for genetic testing, other costs, and necessary travel
and other reasonable expenses incurred in a proceeding under this
section. Attorney's fees awarded by the court may be paid directly
to the attorney. An attorney who is awarded attorney's fees may
enforce the order in the attorney's own name.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
§ 160.763. HEALTH CARE FACILITY REPORTING
REQUIREMENT. (a) The Texas Department of Health by rule shall
develop and implement a confidential reporting system that requires
each health care facility in this state at which assisted
reproduction procedures are performed under gestational agreements
to report statistics related to those procedures.
(b) In developing the reporting system, the department
shall require each health care facility described by Subsection (a)
to annually report:
(1) the number of assisted reproduction procedures
under a gestational agreement performed at the facility during the
preceding year; and
(2) the number and current status of embryos created
through assisted reproduction procedures described by Subdivision
(1) that were not transferred for implantation.
Added by Acts 2003, 78th Leg., ch. 457, § 2, eff. Sept. 1, 2003.
http://library.law.smu.edu/resguide/support.htm - This Guide is not intended to be a substitute for legal advice. Please verify and update with your own research.
TEXAS STATUTES
Texas Family Code Ann. §§ 154.001 et seq. (Vernon 2002 & Supp. 2006) [Texas Collection; 2-A]. Numerical guidelines begin at §154.121. Examine all of the sections, however, for a complete understanding of support orders.
Family Code Ann. § 157.001 et seq. (Vernon 2002 & Supp. 2006) [Texas Collection; 2-A]. Provides for enforcement of child support. [
Uniform Interstate Family Support Act, Texas Family Code Ann. § 159.001 et seq. (Vernon 2002 & Supp. 2006) [Texas Collection; 2-A]. Provides for reciprocal enforcement of support orders between states and other proceedings to establish, enforce, or modify support orders. [Texas Collection; 2-A]
Family Code Ann. § 158.001 et seq. (Vernon 2002 & Supp. 2006) [Texas Collection; 2-A]. Provides for withholding from earnings for child support.
Texas Family Code Ann. § 156.001 et seq. (Vernon 2002 & Supp. 2006) [Texas Collection; 2-A]. Provides for modification of child support.
Sampson & Tindall’s Texas Family Code Annotated [RESERVE KFT1296 .S64 1988 F.C. Supp. 2006]. A single volume annotated Texas Family Code with related state and federal statutes.
INTERNETSOURCES
Texas Family Code. Available from Texas Legislature Online at http://tlo2.tlc.state.tx.us/statutes/statutes.html.
Texas Child Support Division, Office of the Attorney General. http://www.oag.state.tx.us/child/index.shtml
Texas Child Support Issues, from the Law Offices of Raggio & Raggio, Dallas, Texas. http://www.raggiolaw.com/txart02.html
Support Guidelines.com. http://www.supportguidelines.com/links.html. Child support guidelines for states and U.S. territories, new cases and news articles, links to child support calculators by state and selected foreign countries.
©2006 Underwood Law Library, SMU Dedman School of Law.
http://www.oag.state.tx.us/cs/
http://tlo2.tlc.state.tx.us/statutes/statutes.html
http://www.tferfw.org/TFER/child_support/cs_laws.htm#overview - Overview of Texas Child Support Laws
Chapter 154 of the Texas Family Code sets forth guidelines for guidelines for calculating child support. Although they are called guidelines, you might as well view them as laws set in stone because judges rarely deviate from these guidelines.
Only a parent can be ordered to pay child support. The parent ordered to pay child support is known as the obligor. The parent who receives child support is known as the obligee. There is a formula set forth in the guidelines to calculate a child support obligation and this formula is based on the three things:
The obligor's monthly earnings
The number of children the obligor is to pay this child support to
The number of other children the obligor is legally obligated to support
Medical support is also provided for in the child support guidelines. Most often, anyone ordered to pay child support is ordered to provided medical support for the children. This means the obligor has to either provide hospital and major medical insurance for the children or reimburse as additional child support, the other parent person who is providing the health insurance. Out of pocket costs (not monthly premiums) and co-pays are usually split 50/50 between both parents.
Most every child support order sets forth a child support collection agency to receive the child support from the obligor and to disperse it to the obligee. The Texas Attorney General Office is responsible for collecting most child support ordered in Texas. The Family Code also provides for local child support registries, such as the Tarrant County Child Support Office, to collect and disperse payments as well. However, most local registries are now sending payments to the Attorney General for disbursement which indicates a bleak future for local registries as we know them. Texas Fathers For Equal Rights is very supportive of our local registry, the Tarrant County Child Support Office, and we hope they continue to exist.
If child support is not paid as ordered, enforcement of the child support order becomes a very real possibility. The Texas Attorney General Office or a private attorney hired by the obligee can file a motion for enforcement with the court and if the obligor is found guilty of not paying child support as ordered, jail time or probation usually results.
How Child Support is Calculated in Texas
In Texas, calculating child support is a four step formula and this formula is set forth in chapter 154 of the Texas family code. The four steps are:
Step 1. Determine gross monthly earnings.
Step 2. Determine monthly net resources.
Step 3. Determine what percentage you should pay.
Step 4. Apply that percentage to your monthly net resources.
The details of these steps are listed below followed by a link to sample child support calulations.
Step 1. Determine Gross Monthly Earnings
Your gross monthly earnings are what you make each month before taxes or any other deduction is taken from your pay check. The courts usually determined gross monthly earnings by looking at paychecks and W-2s and determining what you are likely to make. Any investment, pension or disability check that is generating income for you is also factored in when determining your gross monthly income. Overtime and second jobs are often times factored in as well, but not always
Step 2. Determine Monthly Net Resources
This is a two step process. First, find your gross monthly earnings on the AG tax chart and determine what the Attorney General considers your monthly net resources to be. Then, take that number and subtract three things:
1. Health Insurance - Not your health insurance but the cost of insuring the children only or the cost of adding them to your insurance plan.
2. Mandatory Retirement (mandatory is the operative word. Only if your employer requires you to contribute to a 401K, pension plan, etc. can you deduct the withholdings for the purposes of calculating child support.)
3. Union Dues (employee unions related to your current job)
Step 3. Determine Your Child Support Percentage
The percentage is derived from the chart below. You take the number of children from the present case on the horizontal (top) row and then go to the vertical line and find the number of other children you are legally obligated to support. If this is confusing read the examples below the chart for clarification.
Note: Obligors who have net monthly resources of over $6,000 per month follow rules that can be different from above. The first $6,000 of monthly net resource is calculated by the formulas above and the court looks at assets of both parties and needs of the child to determine if any additional child support is needed.
Step 4. Apply Percentage to Monthly Net Resources
Take the percentage (from step 3) of the net monthly resources (from step 4) and this is your child support obligation.
Was That Confusing?
click here for sample child support calculations
Medical Support
In the child support guidelines set forth in Texas Family Code chapter 154, medical support is addressed. Along with child support payments, the obligor is usually ordered to provide medical support for the children. The obligor can only be ordered to pay medical support to the other parent if the case is a divorce and even then, it is very rare.
Most medical support orders provide different options of how the children will be insured that depend on the availability of medical insurance through the obligee or obligor's employment. For example, if health insurance is available through the obligor's employment at the time the order is rendered, then the order will state a finding of such availability and order that the obligor obtain and maintain health insurance for the children through his employment. It will contain a clause that states that if the obligor no longer has medical insurance available for the children through his employment, then either the obligee will provided it through their employment (and be reimbursed by the obligor) or the obligor will provide medical insurance at his or her sole expense.
Keep in mind, the above paragraph is only dealing with the monthly premiums. The obligor is not usually solely responsible for doctor visit co-pays and prescription co-pays and other out of pocket expenses. Out of pocket expenses are usually ordered by the court to be divided equally by both parties provided that the bill was presented to the other party within 10 days of occurrence by mail.
Note: Although medical support is considered child support, the cost of medically insuring your child is not deducted from your child support obligation as many people believe. It is only deducted from your net resources prior to calculating your child support obligation. For example: If your net resources are calculated at $2,000.00 per month and you have one child to support and no others, your child support obligation would be $400.00 (20% of $2,000). However, if it cost you $300.00 to medically insure your child, that amount is not deducted from $400.00 (If that were true, your child support would be $100.00). The amount is deducted from your net resources making your net resources $1700 and your child support $340.00 (20% of $1700.00)
Modifying Child Support
Every child support order, whether it be in a divorce decree, order establishing paternity, order in suit affecting parent-child relationship, etc., is subject to being modified. To modify a child support order, grounds for modification must be met. The Texas Family Code list three grounds for modifying a child support order:
1. The circumstances of the child or one of the parties has materially and substantially changed. Obligors losing employment or earning significantly less money then they were at the time of the child support order was rendered is considered a material change in circumstance. Both the obligor and obligee often use these grounds to either raise or lower child support.
Note: Being called to active duty from the reserves is a material change in circumstance that warrants a modification hearing. (Texas Family Code 156.410)
2. It has been three years since the child support was ordered and (not or) the current child support differs by either 20 percent or $100 from the amount that would be awarded if the current guidelines were applied. These grounds are usually used by the obligee (the one who receives child support) to raise child support.
3. The amount of child support ordered does not substantially conform to the child support guidelines. Both the obligor and obligee often use these grounds to either raise or lower child support.
Once the proper grounds for modification have been met, a petition to modify parent-child relationship can be filed with the court and a modification hearing takes place. A judge then decides on whether or not to modify the child support obligation. In general, if grounds have been met, the judge will apply the guidelines and modify the child support to conform to the guidelines.
Note 1: Meeting the grounds for modifying child support does not guarantee that the child support will be modified. It only guarantees that a judge will hear your case. The judge could deny your request for reasons such as he or she feels that you have intentionally lowered your monthly net resources for the purpose of lowering your child support.
Note 2: Retroactive modification of child support is not legal in Texas. Child support can only be modified back to the date that the other party was served with the modification papers. Therefore, if an obligor has a drastic change in circumstances (such as unemployment) and chooses to request a modification of his or her child support obligation, the obligor should do so quickly to avoid falling behind on his or her obligation.
Enforcement of Child Support
Texas Family Code chapter 157 addresses the enforcement of a child support order.
The Texas Attorney General, the obligee through a private attorney, or a friend of the court, can bring a lawsuit against an obligor who has not paid his child support as ordered. This means that there will be a trial to determine whether or not the obligor paid his child support as ordered and whether or not the obligor had any affirmative defenses for not paying. Below is a compilation of affirmative defenses listed in the Teas Family Code :
1. The obligee voluntarily let the child live with and be supported by the obligor. These periods that the obligor had the child(ren) must be above and beyond any court-ordered periods of possession and these periods must coincide with the times the obligor did not pay child support. An obligor who met these conditions may request reimbursement from the obligee (Texas Family Code 157.008 (d)). Note: this does not mean that the obligor need to only verbally request to the judge for reimbursement. Proper legal paperwork must be filed making this request.
2. The obligor lacked the ability to provide support in the amount ordered. This means that he lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed or attempted to unsuccessfully to do so with the property. It means that the obligor attempted unsuccessfully to borrow the funds needed. It also means that the obligor knew of no source from which he could have borrowed or legally obtained the funds.
The enforceability of an order is another issue. A person can not be found in contempt of court if the portion of the order allegedly violated is unenforceable.* A child-support order must be very specific regarding dollar amounts, start dates, manner of payment, etc. and a large percentage of child support orders (especially those written by private attorneys and older Attorney General child support orders) are not enforceable. If the accused feels that the orders are not enforceable, it is up to the accused (or the attorney of the accused) to properly present this allegation of un enforceability to the court.
At the trial, if the judge finds that the order was enforceable, that obligor did not pay his child support as ordered, and had no affirmative defenses for not paying then he will most likely be found in contempt of court and punished with jail time or community supervision (probation) and the court can place a lien on the property of the obligor. Also, a person found in contempt of court is usually ordered to pay court costs and any attorney fees (including those incurred by the other party).
*Note: Just because a child support order is unenforceable, it doesn't mean that the obligor doesn't have to pay. It only means that the obligor will not go to jail this time. The obligor will still owe the money and the court will render enforceable orders to ensure that the obligor is subject to a jail sentence if he or she continues to not pay the child support (and back child support) as ordered.
Support for Disabled Child into Adulthood
If the court determines that a child is disabled i.e., the child requires "substantial care and personal supervision because of mental or physical disability and will not be capable of self-support" whether institutionalized or not, the court may order child support for an indefinite period of time provided that the disability existed or was caused before the child's 18th birthday.
Post High School Support
Other then for a disabled child, the Texas Family Code does not provide for child support for a child after that child is 18 years of age and graduated from high school. Rarely does a judge order such child support.