As medical science has advanced so has the ability for parents to enter into unique arrangements with third parties to conceive children. For decades, parents have been able to go about fertilization and conception over child with sperm donors and in vitro fertilization. Whereas many times you hear about circumstances like this in regard to parents who are unable to conceive there are also instances where unmarried and single women seek to have a child through the use of a sperm donor. This presents some unique questions regarding how the donor of that sperm is treated in relation to the subsequent birth of a child.
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 donate sperm relative to any subsequent child being born. Specifically, section 160.702 specifies that a sperm donor is not a parent of a child who is conceived by means of assisted reproduction. This does not mean that if you as a husband provide sperm for or consents to assisted reproduction by your wife that you are not the father of the child that is born subsequently. 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 have the intent to be the father of a child born of assisted reproductive means then you should keep in mind that if you provide sperm to a doctor and the doctor then helps your partner become pregnant as a result 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 acknowledgement of paternity?
It is presumed that if you as a man are married to a woman that any child born to that woman during the course of 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 to that child in a legal sense.
On the other hand, if you are not married to your child's mother then additional steps will have to be taken in order to confirm parentage and to legally declare your father hood to that child. For instance, if the mother of your child and you sign an acknowledgement of paternity then you are displaying a willingness to establish your paternity as to that child. This acknowledgement 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 in order for it to be valid.
Furthermore, tan acknowledgement 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 did the results of that genetic testing will need to be disclosed in the acknowledgement of paternity.
By signing this document you and your child's mother are essentially stating 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 are having 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 acknowledgement 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 paternity of a child unless you have rescinded that acknowledgement.
How do you rescind an acknowledgement 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 then to think of the child then 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 acknowledgement 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 there are requirements that are in place that you must follow in order to do so. The same rules that I'm about to go over as far as 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 court to adjudicate an issue related to that child including a proceeding that establishes child support. This means that you have to figure out if a hearing date has been set up to determine any issue regarding that child prior to 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 any options to do so. Let's walk through what the process looks like for challenging a denial or acknowledgement of paternity after the above mentioned deadlines have already passed.
The reality of your situation is that if you have signed an acknowledgement 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 anytime 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 then it is too late.
What are the requirements in Texas for genetic testing to occur?
In the event that you are interested in obtaining an order for genetic testing to be done to confirm your parentage to a child then you have to know the basics of how to get that set up. 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 it is to determine parentage to the child in question. Additionally, if the request for genetic testing have your child is made before your child is born then the court may not order testing to be done until that child is born.
There are multiple types of genetic testing that may be undertaken in your case to prove the relationship between you and the child in question. Whatever the type that is utilized by the judge it must be one that is relied upon by experts in the field of genetic testing. Furthermore, at home tests will not suffice. Rather, the testing must be performed in a testing laboratory that is accredited by various medical societies or bodies that are designated by the government.
the results of the genetic testing 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 specimen of genetic material that is 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 the results of genetic testing 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 other genetic testing that satisfies the requirements we have previously listed. That genetic test must show that you are excluded as a biological father to the child 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 both 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 by means of 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 then at that point a valid paternity challenge could be held.
Additionally, if a hearing to adjudicate parentage may be held at anytime 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 mother of the child did not reside in the same residence during the time of 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 prior to 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 the goal of a 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 in 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 a death prior to the placement of sperm?
Suppose that your husband word to pass away prior to 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 that he will 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 but 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 conceive a child through assisted reproduction methods then you would be able to proceed with an adoption without first having to terminate the parental rights of any father. Again, a man who is a sperm donor is not legally able to be the father to a child unless he and the mother first signed documentation stating that with the doctor prior to placement of this firm. Assuming that your spouse simply went to a sperm bank and obtained genetic material that way then you would be able to adopt your spouses 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 as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.