Paternity: How to Enforce or Limit a Father’s Rights

June 2013

Paternity: How to Enforce or Limit a Father´s Rights

 

Establish Paternity and be a good fatherA very common question I get asked involves a mother who states she and and the farther are not together and he now wants to see the baby. Invariably, the mother is nervous, afraid the father will not give the baby back, does not think he can care for the child the way she does, or just does not think he deserves to see the child.A second question I routinely get from the other side of this same issue is a father who states the mother will not let him see the child. Sometimes the father knows the reason for the denial and other times, all he can say is ” She won´t let me see my child.”Setting aside for the moment whether or not the concerns of the mother are valid or even which side is asking the question. The answer is always the same. “GET SOME COURT ORDERS!

It is important to understand two concepts: (1) A mother and a father have EQUAL rights where a child is concerned unless and until a court says otherwise; and (2) possession is 9/10´s of the law. Stated another way, unless there is a court order, a mother can have the child whenever she has the child and the father can have the child whenever he can have the child. The question becomes, when can each have the child?

Without court orders, there is no way of knowing. A mother can simply say “no”. The father has little or no choice in the matter but if he gets possession of the child, he too can simply refuse to return the child to the mother upon her request. Guess what? This is legal, both ways. However, the party that does this must BEWARE, THE JUDGE WILL NOT BE IMPRESSED. While a father or mother who has physical possession of a child with no custody orders has more power at the moment of possession, Judges see parents acting stupid everyday. More important, you simply cannot and will not come up with a new excuse or new reason the Judge has not heard before.

Equally important, no matter what excuse or reason you have, the Judge has not only heard it, there is a substantial probability that the Judge defended a parent against the claim at least once and most likely several times before becoming a Judge. Even those that never defended against the claims have heard every excuse or reason under the sun premised in “woman´s intuition”, or “feelings” or just plain lies. This is not to say a mother or father is not justified in having feelings, fears, or concerns. The point is, these feelings, fears, or concerns that are not supported by admissible evidence (and your opinion is not admissible evidence) will not withstand scrutiny in Court. Even worse, they may be considered a “false allegation” which is one of the factors the court must consider when trying to determine best interest of the child.

The “worst case scenario” for a mother is that her fears come true and there are no court orders she can show the police when she calls. She can report the missing child and when she tells the officer that the father has the child the first question she will be asked is if there are any custody orders. If the answer is “no&uot; then the likely response from the police or sheriff is that the issue is domestic in nature and that the officer has no authority or business getting involved. On a good day (from Mom´s point of view) is that the officer agrees to tell the father that he (the father) should give the child back. Guess what? If Dad is not disturbing the peace and the child appears safe at the moment – the officer has NO AUTHORITY to take the child. Mom´s biggest fear has come true and without Court Orders, there is absolutely nothing she can do about it.

Now let´s look at a worst case scenario for a father. This is a much more common scenario. Mom refuses to let Dad see the child, Dad puts up with it until Mom decides she is leaving town and taking the child. Dad watches the U-Haul drive away before he decides to finally hire a lawyer. Guess what? Dad can ask the Judge to order Mom to return to Texas with the baby, but the father has to ask and prove it is not only in the child´s best interest but that it is financially feasible. Plan on paying child support and be prepared to offer additional monies to cover the cost of the move back, displacement cost, etc. If the child is allowed to remain outside Texas for more than six months the true nightmare begins, the Mother can then apply for child support in her new home state. Even worse – she may employ the Attorney General to do so, the child support case will be handled here in Texas and Dad will be ordered to pay support and told that if he wants any visitation rights, he has to go to Mom’s new home state and file a suit there, independent of the child support case here – Dad gets to pay two lawyers and fight a custody battle across state lines while Mom uses child support Dad is paying for the child to pay her lawyer so Dad really gets to pay THREE lawyers.

Dad´s worse case scenario brings me to a very important point. All too often parents think that hiring a lawyer to get Custody Orders is TOO EXPENSIVE and they avoid the cost, choosing to wait unil they have no choice. Waiting to get Custody Orders is like waiting for a tooth ache stop. The ache you feel now may go away, it may not. If it goes away, you get off cheap until it comes back (it always comes back) and when it does, the repair cost a lot more. It is ALWAYS best to just legitimize the whole thing while both parents are amicable and hopefully file and enter an agreed order in a paternity suit. These orders will establish paternity, specify each parent´s rights, and set out the visitation that a Police Officer will enforce when and if the need arises.

General custody orders or Standard Possession Orders protect both side and are not that expensive when you compare it to the stress, fear, and worry you will endure when things do not go well. There is no price tag that anyone can put on “When things go wrong” in a custody case, so why risk it?

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