H. Service of Citation

The following are entitled to service of citation on the filing of a petition in an original suit:

•   A managing conservator;

•   A possessory conservator;

•   A person having possession of or access to the child under an order;

•   A person required by law or by order to provide for the support of the child;

•   A guardian of the person of the child;

•   A guardian of the estate of the child;

•   Each parent as to whom the parent-child relationship has not been terminated or process has not been waived under Tex. Fam. Code Chapter 161;

•   An alleged father, unless there is attached to the petition an affidavit of waiver of interest in a child executed by the alleged father as provided by Tex. Fam. Code Chapter 161 or unless the petitioner has complied with the provisions of Tex. Fam. Code § 161.002(b)(2), (3), or (4);

•   A man who has filed a notice of intent to claim paternity as provided by Tex. Fam. Code Chapter 160;

•   DFPS, if the petition requests that DFPS be appointed as managing conservator of the child;

•   The Title IV-D agency, if the petition requests the termination of the parent-child relationship and support rights have been assigned to the Title IV-D agency under Tex. Fam. Code Chapter 231;

•   A prospective adoptive parent to whom standing has been conferred under Tex. Fam. Code § 102.0035; and

•   A person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Tex. Fam. Code Chapter 161 or to whom consent to adoption has been given in writing under Tex. Fam. Code Chapter 162. Tex. Fam. Code § 102.009(a).

Alleged fathers are not parents as defined in Tex. Fam. Code § 101.024 and do not have the right to a court appointed attorney other than one appointed pursuant to Tex. Fam. Code § 107.013(a)(3) to monitor the due diligence of DFPS in checking the paternity registry under Tex. Fam. Code Chapter 160. However, alleged fathers have the right to service of citation unless that right is waived in an affidavit of waiver of interest in the child, or forfeited by failing to register with the paternity registry. Tex. Fam. Code § 102.009(a)(8).

AND

Citation may be served on any other person who has or who may assert an interest in the child. Tex. Fam. Code § 102.009(b).

AND

Citation on the filing of an original petition in a suit shall be issued and served as in other civil cases. Tex. Fam. Code § 102.009(c).

Special Issue: Early determination of paternity issues may be important as it affects potential relative placement decisions. On the other hand, because paternity conveys rights to custody, reunification, and visitation, the court should carefully consider whether to rule on an alleged father’s paternity status before sufficient information has been gathered and considered. Judges interested in statutory provisions regarding paternity, please see the Texas Bench Book, Chapter 4: Family Proceedings, VII. Parent & Child Relationship, B. Paternity on the Texas Center for the Judiciary website at: http://www.yourhonor.com/web/Online/Resources/Bench_Books/Online/Resources/Bench_Books.aspx?hkey=933e2911-0259-4dda-962e-430801af23f2.

Waiver of Citation

Tex. Fam. Code § 102.0091, newly enacted in 2015, allows for waiver of citation. A party to a suit under Tex. Fam. Code Title 5 may waive the issuance or service of citation after the suit is filed by filing with the clerk of the court in which the suit is filed the waiver of the party acknowledging receipt of a copy of the filed petition. Tex. Fam. Code § 102.0091(a).

The party executing the waiver may not sign the waiver using a digitalized signature. Tex. Fam. Code § 102.0091(b). The waiver must contain the mailing address of the party executing the waiver. Tex. Fam. Code § 102.0091(c).

Notwithstanding Tex. Civ. Prac. & Rem. Code § 132.001, the waiver must be sworn before a notary public who is not an attorney in the suit, unless the party executing the waiver is incarcerated. Tex. Fam. Code § 102.0091(d). The Texas Rules of Civil Procedure do not apply to a waiver executed under Tex. Fam. Code § 102.0091. Tex. Fam. Code § 102.0091(e).