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I am not the biological father but I want to be - Paternity by Estoppel?

In the past 12 months, my office has represented three different Husbands each going through their own Texas divorce who all had cases in which their wife has had a child with another man. The facts of each case have varied in some of the cases the husband was aware the wife had cheated on them but not that the child was not theirs biologically.

The one thing that was consistent in all three of the cases was that the husband had bonded and love the child and did not care if the child was his biologically. They wanted to remain the father of the child with all the duties and responsibilities that entailed even after the marriage was over.

The facts and the people were different in each one of the three cases so all the twists and turns of the cases played out a little differently. In this blog article, I am going to discuss the various applicable Texas Laws that should be contemplated when contemplating a case involving paternity by Estoppel.

What is Paternity by Estoppel?

The doctrine of paternity by estoppel is most often applied in child support cases to either preclude a man who has held the child out as his own from avoiding support of the child after his relationship with the child's mother has ended.

However, it can also be used to preclude a mother who held one man out as her child's father from denying him a relationship with the child as the father later.

When I handled my first one of these cases I remembered this doctrine from law school and thought I would ask some of my colleagues for their help in getting caught up on applying it in the real world. Unfortunately, this did not work out very well. Most the Texas family law attorneys did not know what I was talking about. However, with a lot of research, I found a few Texas cases on point that allowed me to create the necessary tools to fight these cases in court.

Custody Battles are Expensive

One of the things I caution someone contemplating fighting a case involving paternity by estoppel is that it may get very expensive. This partly because is a fact-intensive issue and partly because it is also a fight regarding conservatorship of a child.

In many of my cases, I can give my clients a guestimate regarding the range of potential costs based on where their case ends up in the process. I am also able to tell them what similar cases have averaged as far as costs.

The cases I have had which have been outliers to this range and cost averages have been cases where there is some sort fight over conservatorship of a child.

Presumption of Paternity – Motion to Deny Genetic Testing

In my cases discussed above the issue of paternity came up during the divorce process because the wives decided to bring up that their husbands were not the genetic father of the children. One of my first battles in one of these cases was over DNA testing.

A wife had on her own without agreement or Court Order conducted a DNA test and was trying to get it admitted to show that her husband was not the Genetic father of the child. In response, we filed a “Motion to Deny Genetic Testing and Objection to Admissibility of Results of Genetic Testing.”

A Court Can Deny a Motion for Genetic Testing

Under the Family Code Section 160.204 “A man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage”

When a child has a presumed or acknowledged father, a court can deny a motion for genetic testing based on equity. See Tex. Fam. Code §160.608(a), (f). To deny the motion, the court must find, based on clear and convincing evidence, that (1) the mother or father engaged in conduct that estops either party from denying parentage and (2) disproving the father’s relationship with the child would be inequitable. See id. §160.608(a), (d), (f). In determining whether testing would be inequitable, the court must consider the child’s best interest. See id. §160.608(b), (f). To determine the child’s best interest, the court must consider the following factors:

  1. The length of time between the date the parentage suit was filed and the date the presumed or acknowledged father was placed on notice that he may not be the genetic father. See id. §160.608(b)(1), (f).
  2. The length of time the presumed or acknowledged father assumed the role of the child’s father. See id. §160.608(b)(2), (f).
  3. the facts surrounding the presumed or acknowledged father’s discovery of his possible nonpaternity. See id. §160.608(b)(3), (f).
  4. The nature of the relationship between the child and the presumed or acknowledged father. See id. §160.608(b)(4), (f).
  5. The age of the child. Id. §160.608(b)(5).
  6. Any harm that may result to the child if presumed or acknowledged paternity is successfully disproved. See id. §160.608(b)(6), (f).
  7. The nature of the relationship between the child and the alleged father. Id. §160.608(b)(7).
  8. The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child. Id. §160.608(b)(8).
  9. Any other factors that may affect the equities arising from the disruption of the relationship between the child and the presumed or acknowledged father or the chance of other harm to the child. Id. §160.608(b)(9), (f).

Genetic Testing Under Texas Family Code 160.502

If a child has a presumed, acknowledged, or adjudicated father, the results of genetic testing are inadmissible to adjudicate parentage unless performed; except:

  1. with the consent of both the mother and the presumed, acknowledged, or adjudicated father; or
  2. under an order of the court under Section 160.502.

Based on Texas Family Code 160.502 we were initially able to keep out the genetic results because they had not been conducted by agreement or by court order. We then had to have a court hearing ad described above on whether the Court would order genetic testing.

Clear and Convincing Evidence

Under Texas Family Code 160.608 to prevent the Court from Ordering Genetic Testing the following must be shown based on clear and convincing evidence:

  1. the mother or father engaged in conduct that estops either party from denying parentage and
  2. disproving the father’s relationship with the child would be inequitable.

The big challenge here is “Clear and Convincing Evidence.”A medium level of burden of proof which is a more rigorous standard to meet than the preponderance of the evidence standard, but a less rigorous standard to meet than proving evidence beyond a reasonable doubt which is the standard needed to convict someone of a crime.

In one of my cases, it was easy enough to prove that the mother had engaged in conduct that estops either party from denying parentage. However, the second prong was more challenging to prove.

If you lose under the Family Code 160.608 all is not lost

Even if someone loses under 160.608 of the Family Code then they may still be able to proceed under a common law basis for paternity by estoppel. In Hausman v. Hausman, 199 S.W.3d 38 (2006) the court found in that case that no statutory basis for estoppel. However, there was a basis for “equitable estoppel.”

Equitable estoppel may arise if five factors are satisfied:

  1. there was a false representation or concealment of material facts;
  2. made with knowledge, actual or constructive, of those facts;
  3. to a party without knowledge, or the means of knowledge, of those facts;
  4. with the intention that it be acted upon; and
  5. the party to whom it was made must have relied on the misrepresentation to his prejudice.

No Heightened Burden of Proof

Unlike section 160.608 of the Family Code. The Court found in Hausman v. Hausman “Nothing in section 160.608(d) requires a heightened burden to be applied when a trial court is exercising its equitable jurisdiction to determine whether a mother is estopped from denying a presumed father’s paternity.

Child Age 4

Once a child turns four a new statute under the Family Code becomes relevant. Under Section 160.607:

  1. Except as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.
  1. A proceeding seeking to adjudicate the parentage of a child having a presumed father may be maintained at any time if the court determines that:
  1. the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or
  2. the presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the time prescribed by Subsection (a) because of the mistaken belief that he was the child's biological father based on misrepresentations that led him to that conclusion.

Generally, under the Texas Family Code, there is no time limitation for a suit to adjudicate parentage if the child has no presumed, alleged, or adjudicated father.

However, to adjudicate parentage of a child with a presumed father the suit must be brought within four years of the anniversary of the child’s birth.

If a parent wants to overcome this four-year limitation, a presumed father must not have lived with the mother or engaged in sexual intercourse with her during the probable time of conception. The presumed father also must never have represented to others that the child was his own.

If two people live together as husband and wife, with a child born during their marriage, and meet the requirements of Texas Family Code 160.607(b) it can be very difficult to overcome.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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