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What is paternity fraud and how can it affect your child?

Paternity fraud occurs when a mother tells a man that her child is the man’s biological offspring despite knowing that either the man is not the father of the child or he may not be the father of the child. While this is a problem that has existed for as long as people have been having children it is becoming more and more of an issue in today’s world.

The presumption in Texas is that if you are married to a woman and that woman gives birth to a child, you are the biological father of that child. This is not always the case, however, and if you present evidence to the contrary this presumption can be rebutted. For instance, if you could show that you were away from your wife during the period in which the child would have been conceived, or could show that you are or were sterile then this would be the sort of evidence that would be relevant to a discussion of attempting to disprove your paternity of the child in question.

This has been the historical way that courts in the United States have handled this sensitive topic. However, recent court decisions from around our country have seen a shift beginning to occur that could potentially change that. For example, I became aware recently of a family law case in another state that allowed a man who was fraudulently led to believe that he was the father of a child to sue the biological father for back child rearing expenses. The interesting part of this decision is that the child in question was thirty years old at the time the decision by the court was made. The judge allowed the man suing for past expenses to do so decades beyond what the statute in that state allowed him to do.

A question that I would like to address in today’s blog post is whether courts, in bending statutes in this manner, encourage men to question whether or not they are the father of a child? What’s more- how harmful (if at all) is this sort of behavior to the child and family at large?

How you can rebut the paternity presumption in Texas

As I stated at the outset of this blog post, if you are married to a woman and that woman gives birth to a child it is presumed that you are that child’s father absent evidence to the contrary. If you think about it, this is a pretty strong presumption that exists under our law. If you can show that you were out of the country for at least the past nine months, for example, this would be sufficient evidence to prove that you are not the child’s father.

This presumption is important for a number reasons. First and foremost it establishes who under the law is responsible for the care and upbringing of the child. Mothers and fathers share equally in the duty of care for a child until a court were to step in and adjudicate otherwise. From the state of Texas’ perspective, it wants to determine who the parents are as early as possible so as to leave our government out of the picture in terms of any responsibility to provide health insurance or other mechanisms of care for the child.

Another legitimate (no pun intended) reason for this presumption is that by “locking” in you and the child’s mother as parents it increases the chances of you sticking around to raise the child and developing a relationship with him or her. Stability and consistency are critical when raising a child and by attaching the title of “parent” to you early on the state is placing responsibility and duty unto you.

A final benefit of this historical presumption of paternity that the state of Texas utilizes is that it allows your child to inherit from you should you suddenly pass away. The law in Texas and in most states of our country is that in order for your child inherit from you it has to be proven that your child was legally yours and that you didn’t provide for anything in your will that barred that child from inheriting property. Sums of money, social security benefits, real estate and other types of property are all important when considering this topic in particular

State courts typically rule on issues regarding paternity fraud

Overall, it is state courts that are left to make decisions in regard to issues regarding paternity fraud. Some of the issues that are involved in paternity fraud on a state court level include presumed fathers and their rights, adjudicated fathers (men who a court has determined to be the legal father of a child) and their rights, as well as acknowledged fathers (men who have signed paperwork declaring themselves to be the biological father of a child).

The historical norm has almost always been to find that if you are a presumed father who would like to present evidence showing that you are not the biological father to a child, you will have difficulty with discontinuing your child support obligation. As we have touched on already in this blog, that trend may be changing with some states allowing presumed fathers to file lawsuits against biological fathers and mothers in an attempt to win back money spent on child care expenses.

What is paternity by estoppel and how can it affect you?

Texas has employed a legal concept called Paternity by Estoppel both historically and in recent court decisions. This concept is applied frequently in cases that deal with child support and will seek to keep a man from avoiding the responsibility of paying support for a child that he has acknowledged as his child once his relationship with the child’s mother has ended. The other instance where paternity by estoppel is utilized is when a mother is attempting to seek child support from one man when she has held out another man as being the child of the father in question. Simply put, a mother cannot mislead a child as to who his or her father is and then attempt to go back on that untruth to further harm the child.

If you are a father, the key to these sort of cases is on whether you as the potential father is able to file a lawsuit to contest that you are able to be the potential father of the child. To avoid being in a situation where a court could determine you are not legally the father even though you are the biological father you need to file a lawsuit to that effect and not play along with the child’s mother stating that another man is the father. If you do “play along” with the mother- even if it is only to avoid paying child support- it is probable that a Texas court would not allow you to be named the legal father of the child. This means you would lose out on the rights and duties to that child that you would ordinarily have.

Time may not be on your side

Keep in mind that there is no time limit for you to file a lawsuit to assert your parentage to a child if no other man has been named the father of the child or there is no presumed or alleged father waiting in the wings. If the child’s mother did not list a man on the birth certificate and has not been to court since the birth of your child then you have time to file a lawsuit to assert your parental rights.However, if the child has a presumed father then you must file a lawsuit to this effect before the child’s fourth birthday. If the man who is the presumed father of the child has not lived with the child’s mother or engaged in intercourse with the mother during the probable time of conception you may be able to get around this four year limitation. Otherwise, you will have a tough time being named the legal father of your

The attorneys with the Law Office of Bryan Fagan, PLLC offer free of charge consultations six days a week with one of our licensed family law attorneys. To learn more about this subject or any other please do not hesitate to contact our office.

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