Dallas Bar Association

Paternity Fraud in Texas

by Katherine K. Kinser and Holly D. Friedman

In Texas, a man is presumed to be the father of any child born to his wife during the marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce. Tex. Fam. Code 160.204(a). The only way the presumed father can rebut that presumption is through adjudication or filing a valid denial of paternity.

In April 2011, the Texas Legislature unanimously passed Senate Bill 785 to amend Sections 154.006 and 161.005 of the Texas Family Code and address the issue of paternity fraud.Prior to the passing of this bill the Texas Family Code did not address a father mistakenly signing an acknowledgment of paternity or having been wrongly adjudicated as the father of the child. In those situations, the law required the father to continue to pay child support even when genetic testing proved that he was not the father of the child. S.B. No 785 amends the law relating to termination of the parent-child relationship in such situations and the accompanying duty to pay child support.            

Practical Applications

Prior to the passage of S.B. 785, Section 161.005 of the Texas Family Code provided that a parent could file a suit for termination of the parent-child relationship, and a court could order termination if it is in the child’s best interest. With the passage of S.B. No 785, a man who has either signed an acknowledgement of paternity or has been adjudicated to be the father of a child without first obtaining genetic has a potential remedy for obtaining termination of the legal parent-child relationship.

The Petition for Termination

To seek termination, the father must file a verified petition and, in addition to stating that he is not the child’s father, must state that he signed the acknowledgment of paternity or failed to contest parentage because of the mistaken belief that he was the child’s genetic father based on a misrepresentation leading him to that conclusion. The mistaken belief must have been held at the time the acknowledgment was signed or on the date the court order in the previous proceeding was rendered.

When to File

 Until September 1, 2012, any man may bring a petition under the bill without regard to when he learned that the child was not his biological child. Beginning September 1, 2012, the petition must be filed not later than 1 year after the man becomes aware of the facts alleged indicating that he is not the father.

Who can File

Any man who has mistakenly signed an acknowledgment of paternity or has been adjudicated to be the father of a child without obtaining genetic testing may file a petition seeking termination. A man may not file if he is the child’s adoptive father, the child was conceived by assisted reproduction that the man consented to, or he is the intended father under a court-approved gestational agreement.

Outcome

If a man is able to establish a meritorious prima facie case for termination, the court will order genetic testing. The result of that test will determine the outcome. If the testing shows the man is not the biological father of a child and the parent-child relationship is thus terminated, the man may no longer be required to pay future child support payments. The termination, however, does not affect the child support arrears or accrual of interest on arrears owed prior to the termination.

In addition to filing for termination of the parent-child relationship, the man may petition the court to continue to allow him rights of possession and access to a child. If possession and access is granted, the court may also require one or all of the parties to participate in counseling with a mental health professional.

Finally, if another man is determined to be the child’s biological father, he may not be ordered to pay retroactive child support for any period of time preceeding the date on which an order terminating another man’s parent-child relationship is entered.

 

Katherine A. Kinser is Board Certified in Family Law and has been practicing family law in Texas for over 25 years. She can be reached at kathy@kinserbates.com. Holly D. Friedman brings her experience and education as a social worker into her practice of family law at The Friedman Law Firm, PLLC. She can be reached at holly@hfriedmanlaw.com.

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