Paola entered her three bedroom home after working a twelve hour shift at the Community Hospital. She was exhausted but happy to be home. She walked in to find her eighteen year old son Martin waiting for her in the living room. She was surprised to see him up. Usually after he worked the late shift at the diner, he would be asleep by the time she got home. She was happy to see him but she noticed his demeanor was different. She greeted him and told him about the persons she encountered in the emergency room that night. There was a particular lady who came in her pajamas complaining of pain and when she did not get in to see a doctor immediately, started screaming obscenities atop of her lungs. Martin listened, but Paola could tell he had something on his mind.
Paola: Mijo how was your day?
Paola: How so mijo?
Martin: I waited on a old woman today. When she arrived, she had a look of despair in her eyes. I spoke with her while waiting her table. I wanted to just give her a little comfort as she waited on her food. Turns out, she was in Dayton looking for her grandson. She said she was carrying on the search for the boy since her son could not anymore. Her son looked for the little boy for fourteen years before his death six months ago from a heart attack. He spent every bit of his earnings looking for his son. He followed leads from El Paso, Austin and San Antonio looking for him but never found his son. He even ended up living with the old woman and her husband because all that he had, he used to look for his child. Dayton was the last lead he had of where is son may be living.
Paola: That's weird, those are all places we've lived. How did the boy become missing?
Martin: She said the boy's mother took him, after she broke up with her son. Her son tried to visit his son and did so continuously for the first year after their relationship ended. But his break up with his ex was contentious. They fought loudly, often and bitterly. One day her son went to the apartment to pick up his son and his ex and their son were gone. She moved and did not tell him where she was going to. Her phone number was disconnected and her family was unwilling to tell him where she went. He called the police but they were unable to help. They said because he was not married to his ex and there were no orders establishing a paternity with he and the child, they could not do anything.
Paola: How sad, but how did this man know the little boy was his?
Martin: I thought so too, but I did not tell her anything because I did not want to offend the old lady. But she continued her explanation. She pulled out a picture. She said when her son went to the cops for help, he showed them the same picture. She exclaimed, how could they look at her son Manolo and the little boy and not see the resemblance. She showed me the picture. It showed a little boy, about three to four years old, sitting in between her son Manolo and his ex. I must admit when I saw the picture, I was taken aback. Martin looked at his mother and saw she was ghostly white when he mentioned Manolo. Mama, who is Manolo?
Paola: What do you mean mijo? Stuttering, I don't know a Manolo?
Martin: Mama, I took the lady's phone number and told her I would call her if I found out anything. But I only did that so I could talk to you first. She did not recognize that the grandson she was looking for was standing right before her. The ex in the picture was you and the little boy was me. Be honest with me, Manolo is my father, right?
Paola's eyes were now filled with tears.
Martin: Why did you tell me my father died when I was baby?
Paola: Your father... Your father …. I did not want the type of life he was going to expose you too. He worked nights at as a club DJ. There was always a party, always different girlfriends. That was not the lifestyle I wanted for you.
Martin: So the old lady lied, he did not want me?
Paola: No, he took care of you, loved you and played with you. He would starve before he let you go hungry. He was proud to have you as his son. But I got tired of the arguing, his false promises of change and his cheating. He refused to get a day job. He would not let go of the club life. It was not the environment for a child. So I left.
Martin: Mama, I get it . He was a horrible boyfriend. But he was my dad. Didn't I have a right to know my dad. Didn't he have a right to be my dad?
The fictional conversation detailed between Martin and Paola depicts a situation many Texas fathers face. Fathers like Manolo are left to live the nightmare of not knowing where their children are, whether their children are safe and if their children even remember them due to the actions of their children's mother. Each parent has a constitutional right to the companionship, care, custody and management of their child.1 Yet the recognition that fathers possess the same rights to raise their children and be present in their lives is sometimes tenuous. So fathers like Manolo must take action to protect their interests in being present during their children's lives.
Established Paternity Equals Established Parental Rights
It is one thing to have a strong resemblance to a child or even recognize similar characteristics and traits that you possess that are now demonstrated by the child. However, unlike mothers where it is easier to know who a child's mother is, fathers must have some legal manner of establishing a parent child relationship in order to exercise their rights as parents. A court of law and law enforcement cannot help a person to exercise the rights of a parent where the legal relationship of paternity was not already established. Before a man can exercise his rights as a parent, he must first establish paternity. Texas fathers may establish paternity by being the presumed father, signing an acknowledgment of paternity, or obtaining a court order that states they are the father.
Any man married to a child's mother at the time of birth or who was married to the child's mother within the 301 days prior to birth is a presumed father.2 Presumed paternity is also established when a man marries the child's mother after birth and asserts paternity in writing to the Texas bureau of vital statistics, voluntarily admits paternity on the child's birth certificate or in a record promises to support the child as his own.3 A man is also the presumed father where he continuously resides with a child during the first two years of life and presented the child as his own.4
Signing an acknowledgment of paternity is another manner in which a man may establish paternity to a child.5 An acknowledgment is akin to a court order establishing paternity and challenging it is permitted only in limited circumstances. 6 Both mother and father to the child must sign and otherwise authenticate the acknowledgment under penalty of perjury that the man signing the document is the father of the child named in the document and that no other man is the presumed father or adjudicated father of the child. The acknowledgment must also state if paternity testing was done, and if done, that the acknowledgment is consistent with the results of paternity testing.7 Once a valid acknowledgment of paternity is done and filed with the bureau of vital statistics, it gives the man acknowledging paternity all rights and duties of a parent.8
Men may also establish paternity in a suit to adjudicate paternity. Genetic testing can be ordered in such suits to assist the court in making a determination. At times, paternity lawsuits can be contentious if there is a dispute as to who the father is. Additionally, in situations where a presumed father is in the picture, a man other than the presumed father who is seeking to be adjudicated as the child's father only has four years from the child's birth to seek a court order.9 In said suit, the aim is to obtain a court order adjudicating a person as a father.
I Have the Same Rights As My Child's Mother, Why Can't I See My Child?
Paternity gives a father the same rights as a mother to possession, access, control, and the same duties to support and protect a child. This is not a problem when mom and dad share the same living space and has the same ability to exercise their rights and duties to their child. The problem arises when living spaces are separated due to a break-up of the parental relationship and/or termination of the familial household. Where the break-up can influence decision making, one parent can exercise their rights to the detriment and sometimes at the exclusion of the other. If there is no court order stating what each parent's rights are in that instance, there is nothing a parent can do to enforce their rights as a parent. A father seeking the assistance of a police officer to possession, access and/or control to their child without a court order will not get aid. To do so in that circumstance would mean that officer would have to interfere with the parental rights of the mother. While both mom and dad have the same rights, when it is not clearly defined who has what rights and when and where those rights may be exercised, a officer is powerless to enforce the rights of one parent over the other. A court order gives law enforcement and the courts a clear pathway of protecting each parents delineated rights to a child. Moreover, a court order is going to give law enforcement express language to enforce the rights of each parent.
Hindsight was 20/20 for Manolo. However, fathers like Manolo can protect their rights by establishing paternity and obtaining a court order to state their rights to possession, access and control to their child. The sooner this is established, the less likely those rights are to be taken. If you find yourself in a similar situation as Manolo or you wish to avoid Manolo's plight, contact the Beecher Law Firm for a consultation to discuss what steps can be taken to protect your rights.
Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.
Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.
1 Wisconsin v. Yoder, 406 U.S. 205,232, 32 L. Ed. 2D 15, 92 S. Ct. (1972)
2 Texas Family Code 160.204(a) (1-3)
3 Id. at (a)(4)
4 Id. at (a)(5)
5 Id. at § 160.302 (a)
6 Id at (a)(5)
7 Id. at (a)(1-4)
8 Id. at 160.305(a).
9 Id. at 160.607(a)