Paternity and Challenge of Paternity

Suits to Determine Parentage and Suits Affecting the Parent Child Relationship

When parties who are unmarried have a child, and disputes arise over the establishment of paternity, custody, visitation and support, the type of suit filed depends on the status of the father. In Texas, there are four distinct categories of fathers—Presumed, Acknowledged, Adjudicated, and Alleged.

Presumed Father. An presumed father is one who is legally presumed under the law to be a child’s father, although that presumption can often be legally challenged and/or rebutted in a court of law. For instance, if a married couple has a child together, the husband is presumed to be the father of the child. However, he can challenge that presumption under certain conditions, and new legislation has made it even easier to do so. When there is a presumed father, any suit involving the child would be called a Suit Affecting the Parent Child Relationship.

Acknowledged Father. An Acknowledged Father is one who signed a special document called an “Acknowledgment of Paternity”, which is then filed with the State Paternity Registry, and which creates a legal relationship to the child. An Acknowledgment of Paternity, at least until recently, was generally harder to challenge than a presumption of paternity. However, that acknowledgment can and often is challenged under certain circumstances, and new legislation makes it even easier to challenge paternity of acknowledged fathers. Suits involving a child who has an acknowledged father are filed as Suits Affecting the Parent Child Relationship.

Adjudicated Father. An Adjudicated Father is one who has been legally determined by a court to be a child’s father. This is usually the result of a so-called “paternity suit, ” but would also apply to divorce cases where a child was born during the marriage. Until recently, it was virtually impossible to challenge the paternity of an “adjudicated father, due to legal principals designed to protect the “finality of judgments. However, even an adjudicated father’s paternity can now be challenged under new legislation if certain conditions are met.

Alleged Father. An alleged father is exactly that–a man alleged to be the father but who is not a presumed father, does not appear on the child’s birth certificate, and has not signed an Acknowledgment of Paternity. The person alleging paternity (the one filing the lawsuit) has the burden of proving the paternity of the alleged father, which is usually accomplished through genetic testing (DNA testing). A lawsuit to establish paternity, custody, visitation and support of a child who has only an alleged father is called a Suit to Determine Parentage.

There is no difference in Texas between a child born to a married a couple and a child born to people who are not married. The old concept of “illegitimacy” is a relic of the past, and there are no longer any “penalties” associated with being born “out of wedlock.”

New Legislation

New legislation which became effective September 1, 2011 has changed the landscape of paternity presumption, acknowledgment and adjudication. In a nutshell, the new law allows any father to challenge his paternity of a child–regardless of whether he is a presumed, acknowledged, or adjudicated father–if he has good reason to believe he is not the father– provided he files his suit by September 01, 2012. After September 01, 2012, he must file such a suit within one year of the date he first had good reason to believe the child may not be his child.

Under the new statute, a pre-trial hearing must first be held to determine whether or not the father has a good reason to suspect that he is not the father. If the Court believes the man has a good reason (a “prima facie case”), the Court must order genetic testing of the child. If the genetic testing excludes the man as being the child’s father, the Court must terminate the parental rights between the man and the child. This process can be streamlined, of course, if both parents are in agreement to have the genetic testing performed.

Technically, this proceeding is a proceeding to terminate a man’s own parental rights to a child, but the practical effect is to legally disestablish paternity of the child while at the same time leaving the mother free to establish the paternity of the true biological father and to request child support from him. Conversely, even if the mother does not wish to do so, the true biological father would also be free to establish his own paternity and request the Court to enter orders for the custody, visitation and support of the child. This law constitutes a huge departure from the previous laws governing the challenge of paternity, most of which are actually still in effect, but which are now much less relevant given the new termination legislation. For instance, the Texas Family Code prohibits any party from challenging paternity (whether presumed or acknowledged) once a child has reached four years of age. Also, until now, it was virtually impossible to overturn an adjudication of paternity. The new termination legislation, which has no age limitation, makes that law somewhat irrelevant, since the new law does not technically disestablish paternity, but simply terminates parental rights and can be filed by a presumed, acknowledged, or adjudicated father. In other words, the rules that apply to challenging paternity do not apply to the rules for termination of parental rights.

As we mentioned before, the new law can also be used by adjudicated fathers–even ones who have been paying child support for years. However, it cannot be used to get back any of the child support paid up to the time when the court terminates the rights of the non-biological father, and the true biological father cannot be required to pay back-support except from the date that the non-biological father’s child support obligation terminated.

Attorney J. Michael Clay of San Antonio has extensive experience fashioning equitable solutions in the area of child visitation on behalf of clients and in the best interests of their children. We craft plans to protect the visitation rights of both fathers and mothers. We work with our clients and the Texas courts to assist our clients and find the solutions that are right for them. In the event that a mutually agreeable solution is not possible, J. Michael Clay has the experience, knowledge, and aggressiveness necessary to successfully represent clients in contested court proceedings.

J. Michael Clay represents both in-state and out-of-state clients in family law cases, including child-custody cases. In fact, The Law Office of J. Michael Clay currently represents clients who reside all over the world, including many military service members. If you have an issue involving child custody, child support or visitation, contact us at (210) 694 – 5205 or online today for a free consultation. We look forward to answering your questions and finding the legal solutions that are right for you.

If you want to know more about family law in general, you are invited to consult the Texas Family Code which contains most of the laws which govern divorces and other family law matters in the State of Texas. Please be aware that the version of the Texas Family Code to which this hyperlink takes you is the most current version available online (2006), but is subject to legislative changes every two years (and sometimes even more often). Therefore, you should not take any action (or fail to take any action) based on the information you find in that version unless you have first received advice from an attorney of your choice and verified that the relevant section of the Texas Family Code is the most current.

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