Going through a situation with your spouse where she has become pregnant with another man's baby is a confusing, frustrating, sad, and potentially damaging situation to find yourself in. There is no telling the impact that this situation will have on your marriage. I think we would all agree that it would be difficult for your marriage to overcome the challenges associated with your wife's unfaithfulness to a degree like this. You will need to think clearly about how to press on despite the cheating. I don't think I'm going out on a limb to say that it would be near impossible for a marriage to overcome this situation. There is too much anger, mistrust, and a pride-killing amount of infidelity to ever come back from.
With that said, what you need to find out about is how to conduct yourself in the face of a scandal within your marriage like this. Right off the bat, you should know that in Texas there is a presumption that if a woman gives birth to a baby while married the husband of that woman is presumed to be the father of the child. This means that unless you, she, or the child's biological father were to come forward and take steps to contest paternity, you would be in a position where you are adjudicated as the child's legal father. This can and will occur even if you have never been in front of a judge and even if you are not the biological father of the child.
Let that sink in for a moment. Imagine a scenario where on top of being cheated on, you are obligated by law to support a child who is not your biological son or daughter. This is enough to make a man tear their hair out. This should not scare or intimidate you. Rather, you should be motivated to take steps toward figuring out a game plan for how to act. Since most men do not find themselves in a situation where they need to "prepare" for a situation like this, I will presume that most of the men reading this blog have a present situation facing them that requires some action. When action is needed, it is best to do so with knowledge and a game plan. Act intentionally, in other words.
When you need information, a good place to look is the internet. Imagine being in your shoes thirty years ago. You would need to go to the library to check out some books on divorce, paternity, or any other family law issue that was impacting your family. Now what you can do is jump online and find that you have access to an immeasurable amount of information related to family law matters like the one you are about to go up against. While the ability to collect information for free is not a bad thing, the sheer volume of sources available to you can be. How do you know who to trust and where can you go to find answers to your most pressing questions?
If you looked at the perfect sources at just the right time you could find the answers to each of the problems, you are facing. However, the reality of the situation is that none of us are perfect legal researchers and Google sometimes doesn’t tell you everything that you need to know. A blog post like this one is a great place for you to begin your journey towards developing your knowledge of this subject matter, but you cannot and should not stop here. Rather, you should take the time and opportunity to explore a source of information that can present a perspective to you based on your specific circumstances and the factors ongoing in your life.
The attorneys with the Law Office of Bryan Fagan welcome you to contact us today with any questions you may have after reading this blog post. We offer free-of-charge consultations six days a week in person, over the phone and via video. These consultations are a great way for you to gain specific knowledge about the exact factors that are relevant to your life and your case. Whether this child is yours or not, it is still a new life and he or she deserves to be in a situation surrounded by their parents. Unfortunately, you are not that person. As a result, you should put the child’s biological father in a position to be able to care for this child.
Our law office has multiple Houston area locations to be able to better serve you and your family. No matter where you live in southeast Texas, we have an office location nearby to suit you. Whether you want to meet with an attorney over the phone for a call over your lunch break, or if you have time before work to squeeze in a consultation, we are here for you. It is our honor to serve our neighbors here in southeast Texas and we will work tirelessly to help you during this difficult time. Please stick around until the end of today's blog post and then reach out to us with any questions you may have moved forward.
The emotions of the situation are tough- don’t let them get the better of you
Without a doubt, the legal aspects of this situation can become a secondary issue- especially at first. You are in a position where you may be ordered to take on personal, legal, and financial responsibility for a child who is not your own. Meanwhile, your wife has had an affair with a man who at this moment can skate by and not necessarily take responsibility for the child. This leaves you in a vulnerable situation where it can feel like you are being taken advantage of from all angles. Not exactly the position that any of us want to find ourselves in.
Keeping your emotions under control is a major challenge to beginning a case like this. You have every right in the world to be upset with your wife. What she did is enough to cut to the core of your relationship. If you were not upset and not angry then that would be out of the ordinary. However, this would not justify you doing things before or during your divorce case that will hurt you or your children. Using foul language in front of the kids, talking to the kids about what happened, harming your spouse or their property. These would be major bad acts and could come back to bite you in the divorce.
Rather, you should keep your emotions under control as best you can. This is one of the advantages of hiring an experienced family law attorney to represent you in the divorce. Rather than having to negotiate and even talk to your co-parent directly, you can use the attorney to convey settlement offers and conduct much of the week-to-week business of a divorce. You will still need to be able to communicate with your co-parent on day-to-day or even hour-to-hour issues, but the emotional, important issues of your divorce can be decided by you and your wife but negotiated by your attorneys.
How do you counter the presumption of paternity in favor of you?
When we talk about a presumption of paternity, we mean that a judge and therefore the law in Texas will believe that you are the father of the child your wife is pregnant with until you can produce evidence sufficient to contract that presumption. Again, it does not matter if you know for a fact that the child is not yours. It does not matter if the biological father knows the child is his. The law has a presumption of paternity in favor of husbands when a married woman is pregnant. You will become the legal father to that child when he is born unless you get to work.
Why is there a presumption of paternity in favor of the husbands of women who give birth to babies? Although this presumption may be causing difficulties in your situation it is something that allows for greater efficiency overall when you consider the alternative is making every married man have to acknowledge that he is the father of his wife’s children. This is what unmarried couples must do, usually through the signing and filing of an Acknowledgment of Paternity.
In your situation you will want to sign and file the opposite of an Acknowledgment of Paternity. This document is known as a Denial of Paternity, and it does exactly what you think it would be based on its name. By completing a Denial of Paternity, you are telling the State of Texas that you are denying that your wife's baby is your biological son or daughter. If your wife is willing to sign the Denial of Paternity, as well, and you send it to the State of Texas Bureau of Vital Statistics then you would not be presumed to be the father of the child. You can talk with your spouse about this and send that form in as early in the pregnancy as you would like. This is the ideal situation and would be all that you need to do as far as producing evidence disclaiming an interest in the child and denying paternity overall.
The role of genetic testing in a paternity case
Let’s suppose that you did not file a denial of paternity at all, or, that you did file a denial of paternity, but your spouse would not sign the form. In that case, you are still the presumed father of this child and are going to have legal rights and responsibilities attached to you and the child. What can you do in that situation to contest paternity? You would need to file a lawsuit in which you deny paternity with a family law court in your area. This is the first step towards having your name cleared of any legal relationship with the child.
Part of that process will be requesting that you and the child undergo DNA testing. This can only be done after the child is born. DNA testing will not be performed on a child still in utero. You cannot perform some sort of self-DNA testing on the child and you at home and then file the results with the court and expect that to take the place of a court-administered DNA test. The test will need to be overseen by a company that is approved by the court and conducted in a way where the chain of custody regarding evidence can be maintained.
As it sometimes happens, a mother may not consent to allow her child to be tested for paternity. A judge in a situation like that can order the mother to make the child available for DNA testing. Another concern that some people have in this situation relates to whether you would need to be in the same room or area as your spouse during these tests. The usual answer is no, you all can coordinate with the tester on when and where the testing will occur. Usually, the testing will occur at a facility but on occasion, testing will be done at the courthouse itself in certain circumstances.
Can you counter the marriage presumption without a DNA test?
The most straightforward way to counter the presumption that you are the father of your wife's child is to collect a genetic sample for you and the child through DNA testing. However, if you and your spouse both agree that you are not the father of this child then you will not need to submit a genetic sample for DNA testing. Then you, your spouse, and the child's biological father would need to follow a few steps to get the paternity issue squared away with the court. First, your spouse (soon-to-ex-spouse) and the child's biological father would need to acknowledge paternity. At the same time, you and your spouse can deny that you are the father of this child. When you file both forms with the State of Texas that takes care of the paternity issue and you would not need to go through the courts to determine paternity and contest paternity, respectively.
What happens if you drop the ball and do not contest paternity?
This presumption in favor of married men being the father to their wife's child is serious. Let's suppose that you do nothing in this situation and assume that a court, your spouse, or just fate will help you out down the line. The child doesn't have your eyes, skin color, or some other characteristic. Surely, you will not be made to pay child support or otherwise provide for a child who is not your flesh and blood. Guess again. You would not be the first person and won't be the last to be on the hook for caring for a child who is not your biological son or daughter. Your spouse could file a lawsuit asking for child support, medical support, and other benefits.
Now, the chances of all this working against you are quite low. If you go through a divorce, then these issues will be sorted out because surely you will mention that the baby is not yours at some point in the case and your attorney will see to it that the steps we just finished discussing will be put into motion. However, if you do not go through a divorce for whatever reason and you do not formally contest paternity then you very well could find yourself facing a situation where you must provide for a child who is not your biological child. You only have a few years to contest paternity before the court no longer allows you to do so.
What should all of this tell you? First, there is a process and procedures surrounding contesting paternity. Yes, it is a serious matter, but a court will not allow you to bust down the doors and shout to the closest judge that you are not this child's father. You will be escorted out of the building and asked to not return. In all seriousness, there are courtroom procedures and filing procedures that you need to be aware of before engaging in this type of case. Do not wander into the case or wait until the last minute to see to it that this case is filed.
Having the help of an experienced family law attorney can be a major step in the right direction for you. An attorney can guide you, provide you with knowledge, and also help you present evidence and accomplish your goals in a paternity contest. Do not leave it to chance. Speak with one of the attorneys with the Law Office of Bryan Fagan today about your situation.
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 consultations 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 as well as how your family's circumstances may be impacted by the filing of a divorce or child custody case.