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Adoption and sperm donation in Texas

As medical science has advanced, parents have to enter into unique arrangements with third parties to conceive children. For decades, parents have been able to fertilize and conception over a child with sperm donors and in vitro fertilization. Whereas many times you hear about circumstances like this regarding parents who are unable to conceive, there are also instances where unmarried and single women seek to have a child through a sperm donor. This presents some unique questions regarding how the donor of that sperm is treated about the subsequent birth.

From what I understand, the vast majority of the time, the identity of the sperm donor is kept anonymous. For example, if you are a woman who seeks to become impregnated by the sperm of a donor, then the identity of that donor would be kept confidential. As a result, you wouldn't be able to subsequently file a lawsuit for child support from the donor of the sperm, and likewise, that donor would not be able to file a lawsuit to obtain custody rights over your child.

The Texas family code contains provisions regarding the status of a man who donates sperm relative to any subsequent child being born. Specifically, section 160.702 specifies that a sperm donor is not a child's parent conceived using assisted reproduction. This does not mean that if you as a husband provide sperm for or consent to assisted reproduction by your wife, you are not the father of the child that is subsequently born. Rather, you would be considered the legal father of this child so long as you are married to the child's mother.

On the other hand, if you are an unmarried man and intend to be the father of a child born of assisted reproductive means, you should keep in mind that if you provide sperm to a doctor. The doctor then helps your partner become pregnant; then, you will also be the father of that child. The catch here is that you must have signed something along with the child's mother that is kept in the records of the Doctor Who assists with the reproductive process.

What is an acknowledgment of paternity?

It is presumed that if you as a man are married to a woman, any child born to that woman during your marriage is your legal child. This means that because this presumption is in place, you would not have to take any additional steps to confirm your relationship with that child in a legal sense.

On the other hand, if you are not married to your child's mother, additional steps will have to be taken to confirm parentage and legally declare your fatherhood to that child. For instance, if the mother of your child and you sign an acknowledgment of paternity, you are displaying a willingness to establish your paternity as to that child. This acknowledgment of paternity will be given to you at the hospital or birthing center where your child is born, and both you and the child's mother will have to sign the document for it to be valid.

Furthermore, tan acknowledgment of paternity has to be in a record and be signed by both you and your child's mother as in an affidavit. An affidavit is a signed document where you state under penalty of perjury that the statements you are about to make are true and correct. Your child has to be specified within the acknowledgment of paternity, and there must be a point made that the child does not have a presumed father under the law. If you have had genetic testing done to confirm the relationship, if any, between you and the child, the results of that genetic testing will need to be disclosed in the acknowledgment of paternity.

By signing this document, you and your child's mother essentially state that the document is as good as going to court and testifying in front of a judge. At that point, a judge would adjudicate parentage through a hearing, but you and your child's mother may do so through this type of document rather than having to go to court and spend the time and money on a legal case.

How can a father deny paternity to a child?

On the other hand, you may be in a position where you have to deny paternity to a child that you do not believe is yours biologically. In this case, you may do so under certain conditions. First, your denial is only valid if another man has signed in filed an acknowledgment of paternity to the same child. Next, the denial of paternity must be in a court record and be signed under penalty of perjury. An important consideration that you have to take is that you could not have previously acknowledged the paternity of a child unless you have rescinded that acknowledgment.

How do you rescind an acknowledgment of paternity?

Initially, You may have been in a position where you had honestly believed that a child was your biological son or daughter. You may have even had the child's mother tell you that this was the case and swear on a stack of bibles that there is no other way to think of the child than as being your own. This may have led you to feel confident in what you were being told, and as a result, you may have signed an acknowledgment of paternity.

Subsequently, however, additional circumstances may have come into play, or facts may have come to the forefront that led you to believe that the child was not your biological son or daughter. In that case, you do have the ability to rescind your acknowledgment of paternity, but some requirements are in place that you must follow to do so. The same rules that I'm about to go over regarding rescinding an acknowledgment of paternity also apply to a denial of paternity.

First, if you want to rescind your acknowledgment or denial of paternity, you must do so before the earlier of the following dates: the 60th day after the effective date of the acknowledgment or denial or the date of proceeding to which you initiated before the court to adjudicate an issue related to that child including a proceeding that establishes child support. This means that you have to determine if a hearing date has been set up to determine any issue regarding that child before the 60th date after acknowledging or denying paternity. If this is the case, you cannot wait until 60 days to rescind the acknowledgment or denial. You must do so before your hearing.

What all has to go into the rescinding of an acknowledgment or denial of paternity? For starters, you are telling the state of Texas that as of the date of the rescission Is filed; a hearing has not been held that affects that child who was identified in your acknowledgment or denial of paternity. This means that if you have been to court to determine child custody, child support, or any other issue related to the child, then your rescission will not be valid or honored. You must also provide a copy of the rescission of paternity 2 the child's mother by certified Mail.

Do you have any options to challenge paternity after these deadlines have passed?

You may be sitting at home in reading this information with some fear, given that you know the deadlines we have discussed to rescind an acknowledgment or denial of paternity have passed you by. In that case, you may be curious to know whether or not you have many options to do so. Let's walk through what the process looks like for challenging a denial or acknowledgment of paternity after the above-mentioned deadlines have already passed.

The reality of your situation is that if you have signed an acknowledgment or denial of paternity and have missed the deadlines discussed in this blog post, then you may have a hearing held to challenge the acknowledgment or denial of paternity only if your basis for doing so is in fraud, duress, or material mistake of fact. Additionally, this hearing must be held at any time before a court order is issued that affects the child identified in the acknowledgment or denial. This means that if you have child support already set up through a court order, it is too late.

What are the requirements in Texas for genetic testing to occur?

If you are interested in obtaining an order for genetic testing to be done to confirm your parentage to a child, you have to know the basics of how to get that setup. A court must order a child and yourself to submit to genetic testing if the request is made by you or your child's mother in a case whose purpose is to determine parentage to the child in question. Additionally, if the request for genetic testing has your child is made before your child is born, the court may not order testing until that child is born.

Multiple types of genetic testing may be undertaken in your case to prove the relationship between you and the child in question. Whatever the type that the judge utilizes, it must be relied upon by experts in genetic testing. Furthermore, at-home tests will not suffice. Rather, the testing must be performed in a laboratory accredited by various medical societies or bodies that the government designates.

The genetic testing results will be compiled into a report and be contained in the court record after being signed by a representative from the testing laboratory. The laboratory will make sure that you are photographed on-site and have your name attached to each genetic material specimen taken from you. The name of the person who collects your specimen will also be specified, and the place in which the specimens were collected and the date of each collection will be specified as well. This is all done to establish a chain of custody so that there is no question as to what could have happened to your specimen after it was taken from you.

Is there a way to Mount a case against your genetic testing results?

In other words, are you able to argue against genetic testing results after they come back in a way that surprised you or goes against what you believe is true? You will be presumed to be the father of a child under the Texas family code if the genetic testing complies with the terms we have just discussed, and the results show that you have at least a 99% chance of being that child's father.

However, you may rebut this presumption only by producing another genetic testing that satisfies the previously listed requirements. That genetic test must show that you are excluded from the child's biological father or if the test identifies another man as the possible father to the child. If you find yourself in a situation where both you and another man are shown to be possible fathers to the child, then the court will order additional genetic testing until a more conclusive result can be obtained.

Can a husband dispute paternity of a child who is born using assisted reproductive methods?

If your wife were to give birth to a child utilizing assisted reproduction, then you, as that woman's husband, cannot challenge your paternity of that child. There are a handful of exceptions to this rule, however. First, if you were to file a lawsuit wherein you challenge paternity within four years of learning of the birth of the child and a court were defined that you did not consent to the assisted reproduction before or after the birth of the child. At that point, a valid paternity challenge could be held.

Additionally, if a hearing to adjudicate parentage may be held at any time if a court decides that you did not provide sperm for or, before or after the birth of the child, you did not consent to the assisted reproduction by your wife. Another way to challenge paternity would be to show that you and the child's mother did not reside in the same residence during the assisted reproduction, and at no time after the child's birth did you treat the child as your own child.

What happens in the event of a divorce before the placement of sperm?

Let's say that you're in a situation where you and your wife agreed to try to conceive a child using assisted reproduction. In doing so, you created a plan with a doctor and set forth to achieve pregnancy. However, before your sperm could be placed properly, you and your spouse got a divorce. In that case, you would not be the parent of any child resulting from that placement unless you consented to a record kept by that doctor. You would have to explicitly state that you consented to be that child's legal parent even after the divorce.

What happens in the event of death before the placement of sperm?

Suppose that your husband's word passes away before the placement of sperm in an assisted reproduction situation. In that case, your deceased husband is not a parent of the resulting child, and less your husband consented in a record kept by your doctor that if the assisted reproduction were to occur after their passing, he would be the parent to that child. This is very similar to what we discussed above with the divorce scenario. I imagine that most doctors who assist couples with reproduction methods would go over all of this with you in advance. Still, if not, I would discuss it with your doctor immediately after it devising a plan.

What about adopting your spouse’s child?

All of the foregoing is to say that if you are married to a woman who conceives a child through assisted reproduction methods, you would be able to proceed with the adoption without first having to terminate the parental rights of any father. Again, a man who is a sperm donor cannot legally be the father to a child unless he and the mother first signed documentation stating that with the doctor before placement of this firm. Assuming that your spouse went to a sperm bank and obtained genetic material that way, then you would be able to adapt your spouse's child without first having to deal with anything related to the sperm donor.

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.

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