Nonmarital Children’s Paternity and Death of Alleged Father

Recently I have had more than one person ask me about establishing paternity and doing a name change after a father has passed away.

There is an automatic presumption of paternity for children born during a marriage. However, the number of children born out of wedlock in this country has increased dramatically since the first half of the twentieth century.

This article will explore whether an action to establish the paternity of an illegitimate child may be brought after the alleged father's death.

Case Law

The question of establishing paternity after death is one that I have run into a few times. It has caused me to look at both the family code and case law.

This situation does not come up often. I will share a brief synopsis of some of the cases I have read on the topic below.

Manuel v. Spector, 712 S.W.2d 219 (Tex. App. 1986)

The child's mother brought an action to establish paternity against a putative father. During the case, the putative father was deceased. The petition was then amended, naming the dead parents his biological parents.

The petition requested the court order the deceased parents to submit to blood tests to establish paternity according to Chapter 13 of the Texas Family Code. The alleged paternal grandmother was ordered to submit to blood testing.

The alleged paternal grandmother sought a writ of mandamus asking to rescind the order.

The appellate court considered the initial or threshold question on whether an action to establish paternity may be brought after the putative father's death.

In considering the answer, the appellate court looked to the Family Code and found that it "does not provide for abatement of the proceeding upon the death of the putative father although it does place a limitation period upon the child to bring the action on or before the second anniversary of the day the child becomes an adult."

The appellate court also considered the intent of the legislature: "Applying a liberal construction to achieve the intent of the legislature and to promote justice, we are not compelled to hold that abatement necessarily follows from the death of the putative father. An action to establish paternity under our family code is not entirely limited to establishing a right of support. Rather there is evidence of a clear intent to create a status: the parent-child relationship, which confers upon the illegitimate child all the rights and privileges of a child born to the father and mother during the marriage." Manuel v. Spector, 712 S.W.2d 219, 222 (Tex. App. 1986).

The Court of Appeals held that:

1. Action to establish paternity may be brought after the death of the putative father, and
2. Alleged paternal grandmother was not a party to paternity proceeding whom trial court could order to submit to blood testing.

If this case were considered today, the grandmother would likely have had to submit to genetic testing. This is because § 160.508 of the Family Code allows for ordering grandparents to be tested.

In Interest of A.S.L., 923 S.W.2d 814, 815 (Tex. App. 1996)

This is the most recent case I have found on the topic. In this case, a mother filed to establish the paternity of an alleged father following his death. The district court dismissed her case, and she appealed.

The Court of Appeals then ruled that that:

1. An action to establish paternity could be brought after the death of the alleged father;
2. A clear and convincing evidence standard was applied to such action; and
3. Evidence was not legally insufficient, and the trial court erred in this finding.

Chapter 160 of the Family Code governs a suit affecting the parent-child relationship in which the parentage of the biological mother or father is sought to be adjudicated. Tex.Fam.Code Ann. § 160.001 (Vernon 1996).

Texas Statutes

§ 160.204. Presumption of Paternity

(a) A man is presumed to be the father of a child if:

1. He is married to the mother of the child, and the child is born during the marriage;

2. He is married to the mother of the child, and the child is run before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

3. He married the mother of the child before the birth of the child in apparent compliance with the law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage, or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

4. He married the mother of the child after the birth of the child in apparent compliance with the law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

(a) the assertion is in a record filed with the vital statistics unit;

(b) he is voluntarily named as the child's father on the child's birth certificate; or

(c) he promised in a record to support the child as his own; or

(d) during the first two years of the child's life, he continuously resided in the household in which the child lived, and he represented to others that the child was his own.

(e) A presumption of paternity established under this section may be rebutted only by:

1. an adjudication under Subchapter G; or

2. the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a proper acknowledgment of paternity as provided by Section 160.305.

§ 160.505. Genetic Testing Results; Rebuttal

(a) A man is rebuttably identified as the father of a child under this chapter if the genetic testing complies with this subchapter and the results disclose:

1. that the man has at least a 99 percent probability of paternity, using a prior chance of 0.5, as calculated by using the combined paternity index obtained in the testing; and

2. a combined paternity index of at least 100 to 1.

(b) A man identified as the father of a child under Subsection (a) may rebut the genetic testing results only by producing other genetic testing satisfying the requirements of this subchapter that:

1. excludes the man as a genetic father of the child; or

2. identifies another man as the possible father of the child.

3. Except as otherwise provided by Section 160.510, if more than one man is identified by genetic testing as the possible father of the child, the court shall order each man to submit to further genetic testing to remember the genetic father.

§ 160.508. Genetic Testing When All Individuals Not Available

(a) Subject to Subsection (b), if a genetic testing specimen for a good cause and under the circumstances the court considers to be is not available from a man who may be the father of a child, a court may order the following individuals to submit specimens for genetic testing:

1. the parents of the man;

2. any brothers or sisters of the man;

3. any other children of the man and their mothers; and

4. other relatives of the man necessary to complete genetic testing.

(b) A court may not render an order under this section unless the court finds that the need for genetic testing outweighs the legitimate interests of the individual sought to be tested.

§ 160.509. Deceased Individual

For a good cause shown, the court may order genetic testing of a deceased individual.

§ 160.631. Adjudication of Paternity

The rules for adjudication of paternity can be located under section 160.631 of the Texas Family Code.

1. The court shall apply the rules stated in this section to adjudicate the paternity of a child.

2. The paternity of a child having a presumed acknowledged or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.

3. Unless the results of genetic testing are admitted to rebut other results of genetic testing, the man identified as the father of a child under Section 160.505 shall be adjudicated as being the father of the child.

4. Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man excluded as the father of a child by genetic testing shall be adjudicated as not being the father of the child.

5. If the court finds that genetic testing under Section 160.505 does not identify or exclude a man as the child's father, the court may not dismiss the proceeding. In that event, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity.

§ 160.602. Standing to Maintain Proceeding

(a) Subject to Subchapter D 1 and Sections 160.607 and 160.609 and except as provided by Subsection (b), a proceeding to adjudicate parentage may be maintained by:

1. the child;
2. the mother of the child;
3. a man whose paternity of the child is to be judged;
4. the support enforcement agency or another government agency authorized by other law;
5. an authorized adoption agency or licensed child-placing agency;
6. a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased is incapacitated or is a minor;
7. a person related within the second degree by consanguinity to the mother of the child, if the mother is dead; or
8. a person who is an intended parent.

(b) After the date a child having no presumed, acknowledged, or adjudicated father becomes an adult, a proceeding to adjudicate the parentage of the adult child may only be maintained by the adult child.

§ 160.606. No Time Limitation

A proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated father may be commenced at any time, including after the date:

1. the child becomes an adult; or
2. an earlier proceeding to adjudicate paternity has been dismissed based on applying a statute of limitation then in effect.

Updating the Birth Certificate and Name of Child

Once the paternity has been established through a court order, that order can then be used to amend the birth certificate and change the child's name.

Typically, a couple of sections are included for this purpose, such as:

Name of Child

IT IS ORDERED that the child formerly known as OLD NAME OF CHILD shall hereafter be named NEW NAME OF CHILD.

Amendment of Birth Certificate

IT IS ORDERED that the bureau of vital statistics shall amend the birth record of the child formerly known as Jane Child, by removing FORMER DAD, adjudicated by this order as not being the father of the child from the birth record, adding NEW DAD as the father of the child, and changing the child's name as specified above.

Record of Paternity

Under Section 192.005 of the Health and Safety Code:

"(a) The items on a birth certificate relating to the child's father shall be completed only if:

(1) the child's mother was married to the father:

(A) at the time of the child's conception;

(B) at the time of the child's birth; or

(C) after the child's birth;

(2) paternity is established by order of a court of competent jurisdiction; or

(3) a valid acknowledgment of paternity executed by the father has been filed with the vital statistics unit as provided by Subchapter D, Chapter 160, Family Code."

Supplementary Birth Certificates

Under Section 192.006 of the Health and Safety Code:

"(a) an additional birth certificate may be filed if the person who is the subject of the certificate:

(1) becomes the child of the person's father by the subsequent marriage of the person's parents;

(2) has the person's parentage determined by a court of competent jurisdiction; or

(3) is adopted under the laws of any state.

(b) An application for a supplementary birth certificate may be filed by:

(1) an adult whose status is changed; or

(2) a legal representative of the person whose status is changed.

(c) The state registrar shall require proof of the change in status that the executive commissioner by rule may prescribe.

(d) Supplementary birth certificates and applications for supplementary birth certificates shall be prepared and filed by department rules.

(e) By department rules, a supplementary birth certificate may be filed for a person whose parentage has been determined by an acknowledgment of paternity.

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