Can I seek visitation to a child that is now 5-years-old?
Question Details:
A past girlfriend had child who she says is mine,she lets my mother see him. but gave him her ex-husband's last name. I have had minimal contact with this child (4 times in 5 years). Do I have any course of action I can take to get some kind of visitation with this child?
Yes, you will need to bring a paternity suit in your local probate and family court.
If the child is in fact yours, then yes. Is she asking for, or has she ever asked for any child support? Generally speaking, the ex-husband is the putative father. That means the law assumes ex-H is the father. Was she married at the time the child was born? Do you know if she named ex-H as the father in any court proceedings? The answers to these questions do not directly affect your interest, but will give you some insight and may affect who needs to be brought into any lawsuit you file.
Are you certain this is your kid? My suggestion is to always get a DNA test done. It is minimally invasive, in fact, it is just a swab of the cheek for you and your son (you can get a fairly accurate test with only two of the three subjects). A three subject test is extremely accurate, but girlfriend would have to agree or be ordered by the court to submit. Some clients prefer to do a 2-subject test for confirmation just to have scientific evidence of what they already know. That said, I have had two test come back negative even though both clients looked me in the eye and said they had no doubt. See:
http://txdivorcelawyer.net/TXdivorcelawyer/BLOG/Entries/2009/8/1_Paternity__Do_you_take_this_child_to_be_your_lawful_child_for_life.html
Once you are certain this is your child, whether you choose to get DNA or just accept it, you need to file a Suit to Establish Parentage. This petition would be filed in the District Court where the child lives. You will have to serve your former girlfriend, and you can expect her to ask for child support for the past five years if you do. This is another location where the information on her ex-H comes into play, if she has been getting child support from him, you (or your lawyer) can argue that she has been committing fraud against both you and the ex-H and allowing her to recover past child support from you is akin to letting her profit (double profit actually) from her fraud. The ex-H could however, fight you on the custody issue relying on the case law that says he is the father, assuming he was adjudicated the child's father at some point.
If ex-H was never adjudicated the father and you are the father, then the legal status is much more simple to establish. You file the petition, serve the girlfriend, ask for a declaration of paternity. Once you have accomplished these steps, you have established a parent-child relationship. Texas assumes you will be a parent-manging conservator (effective 9/1/09 we no longer used Joint Managing and Sole Managing descriptors). A parent-managing conservator has parental rights AND obligations. The rights are right to make certain enumerated decisions, to be named as a parent to be contacted in case of emergency and most importantly, the right to access and possession of the child. Obligations include the obligation to care, support, and protect the child including providing medical insurance/support and paying child support (or paying child expenses while in physical possession of the child).
If you reside in the DFW area, particularly the northern portion of the Dallas area I would be happy to discuss this matter in more detail. You can find my contact information on my website at www.planoattorney.net.
A paternity suit is the place to start. A DNA test will be done to see if you are the child's father. If you are not the father then you will not likely have any rights to visitation, custody, or any other rights in regard to the child. If you are determined to be the father of the child you can then petition the court for your rights as the biological father. The court very rarely denies the father visitation of his children once paternity is established. Contacting a lawyer about your issue is advised, probably the sooner the better.
