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5300 Court Orders, Notice to the Court, Indian Child Welfare Act, Paternity, and Child Support

5310 The Requirement for Staff to Elevate Certain Court Orders

5311 Notice Requirements for Elevating Certain Court Orders

CPS March 2018

CPS regional management, legal representatives, and, staff of the DFPS state office in Austin, must receive timely notification about court orders that may create problems for the CPS program as a whole or may require immediate legal action. 

If a court order meets one of the criteria specified in 5312 Court Orders That Must Be Elevated to State Office, the region must immediately, but no later than the next business day, notify:

  •   the state office division administrator for the subject area the order concerns (such as placement, medical services, or permanency); and

  •   the managing attorney, if it is determined that immediate legal action may be necessary by DFPS legal.

The region must take the following steps to notify the division administrator and managing attorney:

  •   The caseworker must notify the supervisor and program director on the same day that worker becomes aware that the order is made, whether the order is given verbally from the bench or in writing. If the court order is in writing, the caseworker must provide a copy of the order. It is critical that the caseworker provide the notification as soon as possible in order to meet timelines for appealing the order if an appeal is necessary.

  •   The program director must review the order and immediately elevate it to the program administrator to review.

  •   The program administrator must review the order and immediately notify the state office division administrator for the subject area the order concerns (such as placement, medical services, or permanency) if it meets the criteria in 5312 Court Orders That Must Be Elevated to State Office or if the program administrator determines that the order otherwise requires action by the State Office. The program administrator must also review the order to determine if immediate legal action may be necessary and forward the order to the managing attorney for possible appellate action.

Once the state office division administrator is informed of the order, the administrator must review the order and determine how the matter needs to be addressed, in consultation with state office legal, if necessary.

If the order is also forwarded to the managing attorney, the managing attorney will review the order to determine if any appellate action should be taken, in consultation with DFPS legal at state office and the regional attorney or district or county attorney, as necessary.

For notification requirements specific to placements in unapproved facilities and orders in violation of the Interstate Compact on the Placement of Children (ICPC), see:

5313 Notice Requirements for Court-Ordered Placements in Unapproved Facilities

5314 Court Orders That Violate the Interstate Compact on the Placement of Children

5312 Court Orders That Must Be Elevated to State Office

CPS March 2018

The types of orders that require timely notification include, but are not limited to, the following:

  •   Court orders that directly contradict federal law or regulation, or state law or regulation, including orders to place a child in violation of Child Care Licensing’s rules on background checks

  •   Court-ordered placements that fit the criteria explained in 5313 Notice Requirements for Court-Ordered Placements with Unapproved Facilities

  •   Court orders that place a child in violation of the Interstate Compact on the Placement of Children (ICPC), dismiss DFPS from a lawsuit in violation of the ICPC, or otherwise violate the ICPC, as explained in 5314 Court Orders That Violate the Interstate Compact on the Placement of Children

  •   Court orders that direct DFPS to use its appropriated funds in an unauthorized manner, such as an order to pay medical expenses for a child in detention; or an order to pay permanency care assistance, adoption assistance, or kinship reimbursement payments, to persons who do not meet the eligibility criteria

  •   Court orders that contain findings that indicate DFPS failed in a case to take a type of action required by federal law or regulation, or state law or regulation, such as a finding that DFPS failed to make reasonable efforts to prevent the removal of the child or a finding that DFPS failed to make reasonable efforts to finalize a permanency plan

  •   Court orders that may set a precedent for other CPS cases that could be problematic for DFPS to comply with or that conflict with DFPS policy, including but not limited to:

  •   Court orders directing a specific service level for a child

  •   Standing orders specific to one jurisdiction

  •   Court orders that direct an action that is in conflict with DFPS policy or DFPS’s recommendation in the case

  •   Court orders that may result in a threat to child safety

5313 Notice Requirements for Court-Ordered Placements in Unapproved Facilities

CPS March 2018

If the court orders DFPS to place a child in an unapproved facility (see 5313.1 Definition of Unapproved Facility) the region must immediately notify the state office division administrator for placement, and managing attorney as necessary, by taking the steps in 5311 Notice Requirements for Elevating Certain Court Orders.

5313.1 Definition of Unapproved Facility

CPS March 2018

For the purposes of this policy, an unapproved facility is a provider that:

  •   is not equipped to meet the child’s special needs;

  •   is not licensed by DFPS, but is subject to DFPS licensure requirements (placements that otherwise meet the child’s needs and are not required to be licensed by DFPS are not considered unapproved for the purposes of this policy. Examples of placements that are not required to be licensed by DFPS, and therefore are not considered an unapproved facility include: placement with relatives or with fictive kin, such as persons who are close family friends, or placement in a facility that is licensed or approved by other state agencies);

  •   does not contract with DFPS;

  •   is requesting payment outside the child’s applicable foster care rate as set by HHSC; or

  •   is requesting or otherwise necessitating a child-specific contract.

5314 Court Orders That Violate the Interstate Compact on the Placement of Children

CPS March 2018

Court orders that violate the Interstate Compact on the Placement of Children (ICPC) include orders that:

  •   place a child in another state without an approved ICPC home study;

  •   send a child into another state on visits that extend past 30 days; or

  •   dismiss DFPS from its lawsuit without the other state’s agreement.

The exception involves placement of a child with a noncustodial parent who resides in another state. This type of placement is not subject to the ICPC, but requires following a specific protocol. See 4513.1 Placing a Child with an Out-of-State Non-Custodial Parent.

See 9000 Interstate Compact on the Placement of Children and 5710 Interstate Compact on the Placement of Children for information on compliance with the ICPC.

If a caseworker anticipates before a hearing that a court will order a placement that violates the ICPC, the caseworker’s supervisor and program director must work closely with the managing attorney and the attorney representing DFPS to prepare a response before the court orders the placement.

If a judge orders a placement during a hearing that the caseworker or attorney did not anticipate, and the caseworker or attorney knows that the placement violates the ICPC, the attorney must inform the judge on the record:

  •   that placing a child out-of-state without prior approval from the other state nullifies certain services, such as courtesy supervision and Medicaid for the child in that state; and

  •   that the other state ordinarily provides the services for an approved ICPC placement.

If the attorney representing DFPS is unfamiliar with the ICPC requirements, the caseworker must explain DFPS’s objections to the attorney and ask the attorney either to:

  •   state the objections on the record; or

  •   ask that the caseworker be permitted to state the objections on the record.

In the Hearings and Legal Proceedings Resource Guide see Tip Sheet on ICPC Violations.

In addition, the caseworker must:

  •   follow the notification requirements in 5311 Notice Requirements for Elevating Certain Court Orders; and

  •   notify the regional ICPC coordinator and the Texas Interstate Compact Office (TICO) located at the DFPS state office.

5320 Special Court Approvals and Notifications

5321 Obtaining Approval From the Court for Out-of-State Placements and Reunification

CPS March 2018

The caseworker must obtain written approval from the court or the court’s designee before:

  •   placing the child out of state; or

  •   returning the child to the family.

If the court gives oral approval but declines to give written approval for either of the actions above, the caseworker must advise the court in writing of his or her understanding that the court has given approval.

DFPS Rules, 40 TAC §700.1106

If the caseworker is unsure about how to advise the court, the caseworker must consult with the attorney representing DFPS.

5322 Required Notification to the Court

CPS March 2018

Unless the court indicates that it does not want to be notified, the caseworker must notify the court or the court’s designee about actions and events involving a child in DFPS conservatorship.

5322.1 Notifying the Court When a Child Is or May Be Harmed

CPS March 2018

The caseworker must notify the court if:

  •   a child develops a serious or life-endangering illness;

  •   a child dies;

  •   consideration is being given to withdrawing the child from life-support systems or withholding medically indicated treatment;

  •   a child is abused or neglected in a foster home, an adoptive home, a relative’s home, or the child’s own home;

  •   DFPS loses contact with the child because the child has run away or been kidnapped by a parent or relative;

  •   a child decides to place himself or herself in an independent living arrangement; or

  •   any other instance occurs when the child is, or may be, harmed.

DFPS Rules, 40 TAC §700.1107

5322.2 Notifying the Court About a Child Who Is Without a Placement

CPS March 2018

If a child is without a placement, the caseworker must notify the court in which the case is filed no later than the next business day after the child is placed in a temporary alternative arrangement.

The caseworker must notify the court even if the court has indicated that it does not want to be notified of changes in the child’s status.

Texas Family Code §264.107(g)

5322.3 Notifying the Court About a Change of Jurisdiction

CPS March 2018

If a child leaves the court’s geographic jurisdiction, the caseworker must notify the court unless the court indicates that it does not want to be notified.

DFPS Rules, 40 TAC §700.1107

5322.4 Notifying the Court About a Subsequent Removal

CPS March 2018

If DFPS finds it necessary to remove a child who has been returned to the parents and place the child in foster or substitute care, the caseworker must notify the court.

DFPS Rules, 40 TAC §700.1107

5322.5 Notifying the Court About a Designated Medical Consenter

CPS March 2018

If the court authorizes DFPS to consent to the medical care of a child in DFPS conservatorship, the caseworker must provide the court with the name of the person DFPS has designated to consent to the child’s medical care (the medical consenter), no later than five business days after the court provides the authorization. If the designated medical consenter changes, the caseworker must provide notice of the change no later than five business days after the change.

See 11118 Notifying the Court of the Designated Medical Consenter.

Texas Family Code §266.004(c)

5322.6 Notifying the Court About the Education Decision Maker

CPS March 2018

Unless the court has limited DFPS’s rights and duties to make education decisions on behalf of the child, the caseworker must, within five business days after the adversary hearing, provide the court with the name and contact information of:

  •   the person DFPS has designated to make educational decisions on the child’s behalf (the education decision maker); and

  •   the person assigned to serve as the child’s surrogate parent for purposes of making decisions about special education services, if applicable.

If another person is designated to make educational decisions or assigned to serve as a surrogate parent, the caseworker must include the updated information in the permanency progress report.

See 15371 Designating an Education Decision-Maker.

5330 Indian Child Welfare Act (ICWA)

CPS March 2018

If a DFPS lawsuit involves a Native American child, the Indian Child Welfare Act (ICWA) may apply. If so, the legal requirements change dramatically.

See 5740 The Indian Child Welfare Act (ICWA).

While ICWA requirements do not apply in every case, the caseworker must inquire about Native American history in every case.

The caseworker must ask available parents, relatives, and children who are old enough to be interviewed if there is any family history connected to a Native American tribe. The caseworker must document the responses by individual family members, whether a Native American history is reported or denied, and be prepared at every hearing to respond to the court’s inquiry about the family history and identity of any tribes.

If there is any indication that a child may have a family member or ancestor affiliated with a tribe, the caseworker must follow ICWA policies at 5740 The Indian Child Welfare Act (ICWA).

5340 Seeking Child Support for Children in Substitute Care

CPS March 2018

Even when DFPS has been appointed as temporary or permanent managing conservator of a child, the parents still have support obligations to their child. DFPS, therefore, has the legal authority and obligation to seek child support and medical support from the parents.

5341 Requesting Child Support From the Parents of Children in DFPS Conservatorship

5341.1 Requirements for Requesting a Court to Order Parents to Provide Support

CPS March 2018

In DFPS cases involving a suit affecting but not terminating parental rights, DFPS must ask the court to order the parents to provide child support and health insurance.

If the court terminates parental rights, DFPS may request that the court order the parents to provide support.

Although it may appear that the parent is financially unable to provide support, the court determines the parent’s ability to pay. Even a small amount of support allows the parent to share the responsibility of providing for the child’s care and ensures some level of parental involvement. The court may or may not order support as requested, but the caseworker must make the request.

The caseworker must inform the parents that DFPS will request that the parents pay child support and health insurance.

DFPS Rules, 40 TAC §700.1108

5341.2 DFPS’s Right to Review Child Support Payments

CPS March 2018

DFPS is entitled to receive all child support paid for a child, as of the date that the child is placed in substitute care.

Texas Family Code §264.109

If the child’s caregiver is already receiving court-ordered child support, the caseworker must ask the court to make the child support payable to DFPS when DFPS is appointed managing conservator.

If DFPS is appointed temporary managing conservator of a child who is ultimately placed with relatives or close family friends (a kinship placement) and the court orders that the child support be directly paid to the caregiver, the caseworker must:

  •   ask the court to make the child support payable to DPFS; and

  •   inform the court that DPFS will pass the support to the caregiver.

If child support is not made payable to DFPS during temporary conservatorship and the child needs to be moved to a different placement, the caseworker must obtain another court order to ensure that the child support is paid to DFPS or to the child’s new caregiver.

If the court orders the parents to pay child support to DFPS in a conservatorship case, DFPS eligibility staff forwards the court order and submits an automated referral through IMPACT to the Office of the Attorney General’s (OAG’s) Child Support Division for enforcement. The referral must include both legal parents, even if a parent is missing or living in another state. If a parent has more than one child in foster care, the parent must be included on each child’s referral.

DFPS Rules, 40 TAC §700.1109

For the process followed by the eligibility specialist, see the Child Support and Foster Care Eligibility Specialists Resource Guide.

5341.3 Requirement to Ask the Court to Modify Support Orders When a Child Is Reunified With the Parents

CPS March 2018

If a court has ordered a parent to pay child support to DFPS and the child is going to be reunified with that same parent, the caseworker must request that the court revise the child support order to relieve the parent of the support obligation to DFPS while the child is living with that parent.

If the reunification is unsuccessful and the child is returned to foster care, the caseworker must request that the court revise the child support order to reinstate the child support payments to DFPS.

5342 Ongoing DFPS Responsibilities in a Child Support Case

5342.1 Contacting the Office of the Attorney General (OAG)
5342.11 Making the OAG Aware of Issues That Could Affect the Collection of Child Support

CPS March 2018

DFPS must keep the Office of the Attorney General’s (OAG’s) Child Support Division informed of issues that could affect the enforcement of a court order requiring a family to pay child support to DFPS.

Changes that could affect a family’s ability to pay include the death or incapacity of a parent or any other change in the family’s situation that affects the collection.

Completing Form 1702

The caseworker must also notify the foster care eligibility specialist about changes affecting a family’s ability to pay child support, by completing Form 1702 Foster Care Case Referral to the Office of the Attorney General. The caseworker must explain the family’s situation in the form’s Special Notes and Comments About the Case section.

Upon receiving Form 1702 from the caseworker, the eligibility specialist must review the form and, once it is correct, send it to the OAG’s Child Support Division. For the process followed by the eligibility specialist, see the Child Support and Foster Care Eligibility Specialists Resource Guide.

Occasionally issues will arise with a child support referral and the eligibility specialist will ask for caseworker assistance. The caseworker must provide the information requested by the eligibility staff in order to resolve the issue.

5342.12 Requesting Information on a Parent’s Payment of Child Support in Conservatorship Cases

CPS March 2018

To obtain information about a parent’s payment of child support:

  •   the caseworker must contact the child’s eligibility specialist; and

  •   the eligibility specialist must contact the child support program specialist at the DFPS state office.

The program specialist must report the payment information back to the eligibility specialist, who must provide it to the child’s caseworker.

Having payment information enables the caseworker, the District or County Attorney, or the attorney representing DFPS to answer any questions that the court may have or request that the court issue a certain order.

5342.13 Communicating With the OAG to Facilitate the OAG’s Enforcement of a Court Order to Pay Child Support to DFPS

CPS March 2018

Once a court orders a parent to pay child support to DFPS, the Office of the Attorney General’s (OAG’s) Child Support Division enforces the order. If the parent fails to pay the support obligations, DFPS must work with the OAG to resolve the issue.

DFPS Rules, 40 TAC §700.1109

If the OAG’s Child Support Division decides to enforce the obligation through court action, the OAG’s child support attorney contacts the child’s caseworker either:

  •   by sending Form 1701 Child Support, AFDC Foster Care, and AFDC/Medicaid Case Information Exchange to the child’s foster care worker; or

  •   by contacting the caseworker by phone, mail, or email.

When the child’s caseworker receives Form 1701 or is otherwise contacted by the OAG, he or she must inform the attorney representing DFPS that the OAG has proposed a court action.

5342.2 When Relatives or Caregivers Are Not Receiving Court-Ordered Child Support

CPS March 2018

To find out why relatives or caregivers are not receiving court-ordered child support for children in their care:

  •   the caseworker must contact the eligibility specialist; and

  •   the eligibility specialist must contact the child support program specialist at the DFPS state office.

To correct the problem on the OAG system (which enables the payment to the relative or caregiver), the DFPS eligibility specialist must work with the child support program specialist and the caseworker to make any necessary corrections. For the process followed by the eligibility specialist, see the Child Support and Foster Care Eligibility Specialists Resource Guide.

5343 Dismissing a DFPS Case and Closing a Child Support Case

5343.1 Dismissal Orders Not Terminating Parental Rights

CPS March 2018

When DFPS is being dismissed from a conservatorship case for which child support was ordered, it is important that the dismissal order specify how to handle the child support after DFPS is dismissed.

If the court dismisses the case without addressing the child support, the parent is not obligated to pay:

  •   any past due child support to DFPS; or

  •   any future child support payments to the person who will have permanent managing conservatorship of the child.

To avoid this situation, the caseworker must:

  •   contact the child’s foster care eligibility specialist, before the case is dismissed, to request an accounting from the Office of the Attorney General (OAG) about any past child support payments (arrears) or interest owed to DFPS. See 5342.12 Requesting Information on a Parent’s Payment of Child Support in Conservatorship Cases;

  •   if arrears are owed, request either that the dismissal order state that the parents make payments to DFPS until the arrears are paid in full, or that the arrears be waived. See 5343.12 Waiving Child Support Owed to DFPS. Once the caseworker obtains the dismissal order, he or she must send a copy of the order to the eligibility specialist;

  •   regardless of whether the person who takes permanent managing conservatorship of the child is a relative or not, ensure that the court order states that any future child support payments be made to that person and states the amount to be paid.

The caseworker must inform the new caregiver that DFPS does not assist with any enforcement action and that to enforce future child support payments the caregiver must contact the OAG’s Child Support Division. The OAG provides child support services for former DFPS clients. The services include establishing, enforcing, and modifying child support orders. See 5344.4 Helping a Caregiver Obtain Child Support After DFPS Conservatorship Is Dismissed.

5343.11 Dismissal of Child Support Orders Following Termination of Parental Rights

CPS March 2018

In a court order that terminates parental rights, the judge can order that the parents pay post termination child support to DFPS, even though the parents no longer have their parental rights, as long as the child is in substitute care.

If the court does not order the parents to pay post termination child support, the caseworker must request that the court issue a finding that the biological parent must continue to pay any arrears owed to DFPS unless DFPS waives the arrears. See 5343.12 Waiving Child Support Owed to DFPS. Obtaining this finding ensures there is legal authority for DFPS to be paid the arrears the agency is owed for past care.

Once the caseworker obtains the termination order, he or she must send a copy of the order to the eligibility specialist.

5343.12 Waiving Child Support Owed to DFPS

CPS March 2018

Under some circumstances, DFPS can waive arrears owed to the state.

If the caseworker believes that it is in the child’s best interest to waive any state-owed arrears for child support, the caseworker must:

  •   obtain the payment history for the case, in accordance with 5342.12 Requesting Information on a Parent’s Payment of Child Support in Conservatorship Cases; and

  •   consult with the caseworker’s supervisor and the attorney representing DFPS to determine if waiving arrears is appropriate.

If a child is in Title IV-E-funded foster care, DFPS cannot waive the portion of the child support that corresponds to the federally funded portion of the child’s foster care payments.

Arrears That Are Waived

If the state-paid arrears are waived, the caseworker must inform the Office of the Attorney General (OAG) about the decision.

Arrears That Are Not Waived

If the arrears are not waived, the caseworker must ask the court to issue an order that includes a payment schedule that the parent must follow, so that the child support obligation is paid.

Texas Family Code §154.001

5344 Closing the Child Support Case in the OAG System

CPS March 2018

DFPS eligibility staff must close a DFPS child support case in the OAG automated system when:

  •   a court order dismisses DFPS legal conservatorship; or

  •   a court terminates parental rights, unless the court has ordered that the parents continue to pay child support to DFPS despite the termination of parental rights.

For the process followed by the eligibility specialist, the Child Support and Foster Care Eligibility Specialists Resource Guide.

The OAG case must be closed as soon as possible so that:

  •   payments are made to the right entity; and

  •   any subsequent caregiver can open his or her own child support case.

5344.1 Initiating the Closing of a Child Support Case in the OAG System

CPS March 2018

To initiate the closing of a child support case, the child’s caseworker, within seven days of receipt, must send the child’s DFPS eligibility specialist a copy of the written court order or decree:

  •   dismissing DFPS legal conservatorship; or

  •   terminating parental rights, appointing a managing conservator other than DFPS, or both.

The DFPS eligibility specialist sends a copy of the order or decree to the Office of the Attorney General’s (OAG’s) Child Support Division.

5344.2 Determining Whether a DFPS Child Support Case Has Been Closed in the OAG System

CPS March 2018

To determine whether a case has been closed, the child’s caseworker must submit a request through the DFPS eligibility specialist.

The eligibility specialist must contact the program specialist for child support at the DFPS state office.

The program specialist must notify the eligibility specialist about whether the child support obligation is ended.

Even when the order ending the child support obligation has been sent to the Office of the Attorney General (OAG), certain factors may affect the closing of cases in the OAG system (for example, parents who are in arrears on their child support obligation).

5344.3 Factors That Affect the Closing of a DFPS Child Support Case in the OAG’s Automated System

CPS March 2018

Even when DFPS eligibility staff completes the steps for closing a DFPS child support case, various factors may prevent the Office of the Attorney General (OAG) from closing the case. For example:

  •   If a parent owes more than $500 in past-due child support to DFPS, and DFPS has not or cannot waive the arrears, the OAG cannot close the case. In this instance, the OAG may ask DFPS for any locating information on the parents, and caseworkers or other DFPS staff must cooperate with the request for information.

  •   If a youth is no longer part of a parent’s case because the youth has become an adult, but younger siblings remain on the case, the OAG cannot close the case.

In these circumstances, the OAG officer or technician cannot close the DFPS child support case in the automated system, even if DFPS has been legally dismissed from the case and has taken all of the steps necessary to close the case.

5344.4 Helping a Caregiver Obtain Child Support After DFPS Conservatorship Is Dismissed

CPS March 2018

After a court dismisses DFPS as a child’s conservator and places the child with a person other than the child’s parents, that person may ask the Office of the Attorney General (OAG) to provide child support services. The OAG’s services include establishing, enforcing, and modifying court orders for child support.

To help the caregiver request services, the child’s caseworker must:

  •   inform the caregiver that the child support ordered to be paid to DFPS is not automatically transferred to the caregiver, unless the dismissal order specifically states that the caregiver must receive child support from the parents;

  •   inform the caregiver that the OAG’s Child Support Division handles child support enforcement. The caregiver can apply online at Child Support Interactive, in person at the local OAG Child Support Office, or over the phone. The caregiver can also request an application for services by calling the OAG’s toll-free telephone number at (800) 252-8014. An applicant who is deaf or hard of hearing can call TTY (800) 572-2686 (512) 460-6417 or (512) 460-6399 (voice);

  •   provide the caregiver with a copy of the court’s final order for the caregiver to give to the OAG, if possible.

5350 Establishing Paternity

5351 Court Ordered Testing When Paternity Has Not Been Established

5351.1 Referring Cases to the Office of the Attorney General for Paternity Testing

CPS March 2018

The Office of the Attorney General (OAG) is responsible for paternity testing.

When the court orders paternity testing in a foster care case, the child’s caseworker must follow the procedures established between the regional DFPS office and the local office of the OAG’s Child Support Division. Local coordination between DFPS and the OAG ensures that paternity testing is scheduled and conducted in a timely manner.

To refer a case to the OAG for paternity testing, the caseworker must prepare a manual referral packet. (The automated referral process refers cases for enforcement of child support only, not paternity services.)

The referral packet must contain:

  •   Form 1702 Foster Care Case Referral to the Office of the Attorney General; and

  •   the court order for paternity testing.

The caseworker must complete Form 1702 as thoroughly as possible and check the box for Paternity Testing Ordered in Section I, Reason for Referral.

5351.2 Paternity Testing by the OAG and Court Ruling

CPS March 2018

The Office of the Attorney General (OAG):

  •   opens a paternity case;

  •   schedules the parties for testing;

  •   provides the child’s caseworker with the appointment date for testing the parent or the parents and the child; and

  •   sends the original test results to the caseworker who requested the paternity test.

The caseworker must ensure that the attorney representing DFPS:

  •   has the original test results; and

  •   requests a court order consistent with the test results.

After the court rules on the alleged father’s paternity, regardless of whether the individual was excluded or not excluded, the child’s caseworker must forward the court order or the decree from that hearing to the appropriate local OAG office.

5352 Court Ordered Testing When Paternity Has Been Established But Is Questioned

CPS March 2018

The Office of the Attorney General (OAG) does not schedule genetic testing when parentage has already been established by either a properly executed and filed Acknowledgement of Paternity (AOP) or a court order, unless the court makes certain judicial findings.

See:

5352.1 Acknowledgment of Paternity

5352.2 Court Order Establishing Paternity

5352.1 Acknowledgment of Paternity

CPS March 2018

Even if an Acknowledgement of Paternity (AOP) document has been properly executed and filed, there may still be a question about the paternity of the child. In that case, the court may order genetic testing on the child and parent or parents.

The OAG does not conduct paternity testing if there is an AOP form on file, unless the court issues an order that includes:

  •   a finding that the evidence indicates there is a material mistake of fact regarding the circumstances surrounding the AOP; and

  •   an order for genetic testing to properly determine the child’s paternity.

If the court order does not include such findings, the caseworker must contact the regional DFPS attorney to determine whether to obtain such a court order.

5352.2 Court Order Establishing Paternity

CPS March 2018

Even though there is a court order that establishes paternity, there may still be a question about the child’s paternity. In that case, the court may order genetic testing on the child and the parent or parents.

The OAG does not conduct paternity testing if there is a court order establishing paternity, unless the court issues an order that:

  •   includes a finding that there is prima facie evidence (that is, the basic necessary evidence) that the previous order of paternity may be vacated under Texas Rules of Civil Procedure 329b(f) and that vacating the previous order is in the child’s best interest; and

  •   includes an order for genetic testing to properly determine the child’s paternity.

If the court order does not include such findings, the caseworker must contact the regional DFPS attorney to determine whether to obtain such a court order.

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