The father is in California, mother and husband in Texas

DMR wrote:

Classification:  UNCLASSIFIED
Caveats: NONE

Please help!  I want to know where to start…

My husband and I were separated at the time my son was conceived (we have since gotten back together).  He turned 2 in April.  In May, the biological father sued me for paternity and custody when he found out that we had moved to Texas in March.  I am in the military and my husband moved to Texas to get settled.  My son was going back and forth between his biological father and me from December to May.  He was supposed to come back with me to move with me in July and then I was served.  The biological father was fine with us not suing him for child support and making him available for visits, but now doesn’t want us to leave the state with him, wants us to change his birth certificate, and he wants full custody with us having visits because he says he is more stable because I move with my military assignment.  My husband loves our son and wants to raise him as ours.  We want to know what we can do to fight this.  We don’t have much money.  Any help would be appreciated.

Hello DMR,

We can’t provide any sort of legal assistance for your case.  Besides, one of our major aims is to help natural fathers with advice on how to obtain visitation rights to get reasonable access to their children. In about 85 percent and more of the cases of child-access and -custody disputes, the court decisions are directed against natural fathers.  That does not mean that I am biased against you.  I am simply stating facts.

The question in your case appears to be whether your interests should count for more than the interests of the natural father of your child.  Moreover, there are also the interests of your child in regard to his right to know and to be with his natural father.

From my perspective, I would have advised the natural father to obtain an injunction against you to move away farther than a half-hour drive from his residence.

The reality of the custody issue in your case is that you will in all likelihood be able to refuse reasonable or all access by the natural father.  From the perspective of the natural father and that of your child, that would be a great injustice.

Nevertheless, the courts will in all likelihood find in your favour.  It does not appear that you will need much help by anyone.  It will probably be possible for you to represent yourself in court.  However, there will most likely also be a guardian-ad-litem who will ostensibly represent the interests of your child, which will most likely be your interests.

The question in regard to that will be who will be paying the costs of the guardian-ad-litem and of any expert witnesses that may be called into play.  Very likely it will be the natural father who will be ordered to carry those costs.  After all, the courts are heavily biased against men.

I suggest that you get in touch with an equal-parenting-rights organization in Texas, so as to determine what your options are.  Mind you, the venue for the custody hearing will most likely be the home-state of the natural father of your child.

At any rate, you may wish to check this directory for organizations of interest to you in Texas.

You mentioned the child support issue and the fact that you did not demand child support payments.  You may be happy to hear that a decision in regard to that is not necessarily up to any agreement you reach with the natural father.  Texas law on that is most likely no different than the laws relating to that in any other state.  You need to contact Child-Welfare-Services (or whatever government office deals with child-support claims and child-support enforcement in Texas) to find out what your options are.

There is another consideration that, in view of the unlikely event that your current marriage will remain in effect until the death of either you or your husband, you should inform your husband about.

Your current husband will quite possibly have become the “legal” father of the child he did not cause to be conceived.  In regard to that, there are some issues your current husband should get to know about, regardless of how your litigation with the natural father of the child ends.

  1. You may not be able to obtain child support from the natural father on account of your current husband being considered to be the legal father.
  2. Your current husband may not ever be able to shed his paternal duties to the child he did not father.
  3. If your current marriage breaks up (the probability of that happening is on average quite high), your current husband will be ordered to make child-support payment to you for the child he did not cause to be conceived by him.  That principle is called paternity by estoppel.

In many localities a paternity test is a prerequisite to contesting paternity. Unfortunately, virtually without exception, the principles of estoppel (“a legal bar to alleging or denying a fact because of one’s own previous actions or words to the contrary”, such as when paternity was voluntarily assumed — “in loco parentis”) and the “presumption of lawful paternity” (through which paternity is assigned, not necessarily to someone willingly assuming it) come into the picture.  That means that any child born into a marriage is presumed to be the child of the husband of the wife that gave birth to the child, simply through the fact that he is her husband. (Source)


Walter Schneider

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