The law in the state of Texas is that a man is legally presumed to be the father of any child that is born to his wife either during the course of their marriage or before the 301st day after the marriage ends. The most common reasons that a marriage would end are divorce or death.
In order to present a case that would rebut this presumption a man would need to file a document known as a Denial of Paternity with the district or county clerk for the county in which he resides. If you find yourself in a situation where you are in danger of being named as the presumed father of a child who is not your own, this blog post will be important for you to consider.
Changes in the law on Paternity Fraud
The law in Texas has recently been updated on the subject of paternity fraud. Before the change in laws (which occurred in 2011) if you mistakenly signed an acknowledgment of paternity form or were determined to be the legal father of a child by a judge then you would be on the hook to pay child support for the child even if you could prove with genetic testing that you were not the father of the child.
If that sentence put a shiver down your spine, well then that makes two of us. I can’t think of a more helpless situation than being responsible for providing care for a child that is not your own.
What the change in laws means to you as a man in Texas
Prior to 2011, a parent in Texas had the ability to file a suit to terminate their rights and duties to a child and a judge could evaluate the circumstances and grant the petition if doing so were in the best interests of the child.
After 2011, if you are a father who has been legally determined to be the father of a child without first having undergone genetic testing you too may file a motion with the court to have your parental rights and duties terminated as to that child.
The key for you to understand is that in signing the acknowledgment of paternity you must have done so under a misrepresentation that was made to you. A lie, in other words, that led you to believe that you actually were the biological father of the child in question.
Time Limitations & Relevant Statutes
One of the main questions then, would be how soon would you need to bring a lawsuit that challenges the paternity finding.
Texas Family Code - 160.307 - Procedures for Rescission
A signatory may rescind an acknowledgment of paternity or denial of paternity as provided by this section before the earlier of:
(1) the 60th day after the effective date of the acknowledgment or denial, as provided by Section 160.304; or
(2) the date a proceeding to which the signatory is a party is initiated before a court to adjudicate an issue relating to the child, including a proceeding that establishes child support.
Texas Family Code - 160.308 - Challenge After the Expiration of Period for Rescission
(a) After the period for rescission under Section 160.307 has expired, a signatory of an acknowledgment of paternity or denial of paternity may commence a proceeding to challenge the acknowledgment or denial only on the basis of fraud, duress, or material mistake of fact.
The proceeding may be commenced at any time before the issuance of an order affecting the child identified in the acknowledgment or denial, including an order relating to support of the child.
(b) A party challenging an acknowledgment of paternity or denial of paternity has the burden of proof.
(c) Notwithstanding any other provision of this chapter, a collateral attack on an acknowledgment of paternity signed under this chapter may not be maintained after the issuance of an order affecting the child identified in the acknowledgment, including an order relating to support of the child.
(d) For purposes of Subsection (a), evidence that, based on genetic testing, the man who is the signatory of an acknowledgement of paternity is not rebuttably identified as the father of a child in accordance with Section 160.505 constitutes a material mistake of fact.
Texas Family Code - 161.005(c)(d) & (e) - Termination When Parent is Petitioner (Mistaken Paternity)
Subject to Subsection (d), a man may file a suit for termination of the parent-child relationship between the man and a child if, without obtaining genetic testing, the man signed an acknowledgment of paternity of the child in accordance with Subchapter D, Chapter 160, or was adjudicated to be the father of the child in a previous proceeding under this title in which genetic testing did not occur. The petition must be verified and must allege facts showing that the petitioner:
(1) is not the child's genetic father; and
(2) signed the acknowledgment of paternity or failed to contest parentage in the previous proceeding because of the mistaken belief, at the time the acknowledgment was signed or on the date the court order in the previous proceeding was rendered, that he was the child's genetic father based on misrepresentations that led him to that conclusion.
(d) A man may not file a petition under Subsection (c) if:
(1) the man is the child's adoptive father;
(2) the child was conceived by assisted reproduction and the man consented to assisted reproduction by his wife under Subchapter H, Chapter 160; or
(3) the man is the intended father of the child under a gestational agreement validated by a court under Subchapter I, Chapter 160.
(e) A petition under Subsection (c) must be filed not later than the second anniversary of the date on which the petitioner becomes aware of the facts alleged in the petition indicating that the petitioner is not the child's genetic father.
Texas Family Code Section 160.609(b)
This statute states "If a child has an acknowledged father or an adjudicated father, an individual, other than the child, who is not a signatory to the acknowledgment or a party to the adjudication and who seeks an adjudication of paternity of the child must commence a proceeding not later than the fourth anniversary of the effective date of the acknowledgment or adjudication."
What these Statutes Mean?
What these statutes mean is that you don’t have all that long to rescind an acknowledgment of paternity.
However, if you are adjudicated the father in a court order and no genetic testing takes place you get up to two years to file a petition to Terminate your parental rights from the time you have reason to believe you were adjudicated by mistake.
This may seem like a substantial amount of time, but if you need to save up money, hire a lawyer and actually have the lawsuit filed that can end up in your rear view mirror rather easily.
Who is not eligible to file a petition to terminate parent rights based on misrepresentation
If you have adopted the child then you are not eligible to file a motion to have your parental rights terminated under mistake or misrepresentation. Additionally, if the child was conceived by assisted reproduction methods that you had previously given your consent to then you are not able to proceed either.
What happens when your case gets to court?
Obviously there are some hurdles to actually getting yourself in a position to present your case to a judge. Assuming that you meet all the above requirements and have evidence sufficient to show a judge that you did sign the acknowledgment of paternity under false pretenses then you will be ordered to undergo a genetic examination in order to determine paternity for the purposes of your termination request.
If it is shown that you are not the biological father of the child then your rights and duties to the child will be terminated and along with it any responsibility you have to pay future child support amounts. However, if you owe child support for any reason those amounts would not be eliminated and you would still owe these amounts.
Requesting Continued Access to the Child
The other question that I think would be relevant to ask is what happens if you would still want to have the ability to spend time with the child despite your rights and duties being terminated as the legal father of the child.
Often times if you have been operating under the mistaken belief that you are the father of the child it’s likely that you would have spent a great deal of time with him or her and developed a “normal” father/child relationship accordingly. If this is the case, you have the ability to request that the court award you continued possession and access to child until the child turns eighteen years of age.
This is a subject that certainly contains its share of difficult and emotional decisions. You may feel like you owe it to the child to continue to be a part of their life while balancing your own self interest of not wanting to be responsible for a child that is not biologically yours.
Unfortunately, these are questions that you may want to seek answers to from sources other than your lawyer. Certainly though, your attorney should be available to assist you with any concerns you have and to be ready and able to listen to your questions with a supportive ear.
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Across southeast Texas, the Law Office of Bryan Fagan, PLLC seeks to help people find solutions to their family law problems. To learn more about our office and to ask any questions you have in the field of family law please do not hesitate to contact our office. A free of charge consultation with an experienced family law attorney is available six days a week.
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Other Articles you may be interested in:
- Involuntary Termination of Parental Rights in Texas
- Relinquishment and Termination of Parental Rights in Texas
- Terminating Parental Rights in Texas on the Absent Parent
- Voluntarily Relinquishing Your Parental Rights in Texas
- What rights does a father have in Texas?
- Fathers' Rights: Children Born Out of Wedlock in Texas?
- Mom Versus Dad Who Gets the rights? - Custodial Rights Vs. Non-Custodial Rights in Texas
- Husband Not the Father, what do I do in a Texas Divorce?
- I am not the biological father but I want to be - Paternity by Estoppel?
- What do I do if I have overpaid child support in Texas?
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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 Spring, TX Divorce Lawyers right away to protect your rights.
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