Friday, June 8, 2007

Defaulting Bio Dad's Parental Rights Restored on Appeal

Biological Father of Child Born from Adultery Wins Partial Victory in Appeal of Retroactive Child Support Order and Denial of All Visitation

Miles v. Peacock and OAG (Tex.App.- Houston [1st Dist.] Apr. 19, 2007)(Bland)(paternity, restricted appeal)

This case illustrates the perils of not answering and not appearing for trial. Mother and attorney general won a default judgment for $24,000 in retroactive child support, current support of $1,000 per month, life insurance coverage for the benefit of the child, health insurance, and an order denying the biological father all visitation. The child had been born of an adulterous affair and thus had a presumed father. Wife-Mother waited until child was a teen before going after the biological father. The Court of Appeals found Bio Dad had waived the statute of limitations defense that applies under such circumstances by failing to plead it (he failed to file an answer), and held that admission of paternity test results was proper because the mother's husband had asked for them.

Affirming the judgment of paternity, the Court, in an opinion by Justice Jane Bland, reversed the award of child support and the denial of all access because no evidence was presented on the father's income and other relevant factor. Likewise, no evidence was presented that a deviation from the standard possession order was warranted and in the child's best interest. The court's opinion points out that the relevant facts must be proven in family law case to support default judgment, which differs from the confession of judgment rule in other civil cases.

Legal lingo: family law, parentage, adjudication of paternity, restricted appeal, default judgment, retroactive child support, paternity, presumed father, statute of limitations defense (SOL)

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