What is the difference between an alleged and presumed father?

You may not think that this distinction is important, but in the world of family law it is imperative that you understand the difference.  It could be the difference between you actually being the father of a child in the eyes of the law as well as differing burdens of how to overcome that label if you are not the child’s biological father.  In fact, if you are in the middle of a divorce or a suit affecting the parent child relationship, knowing your definitions is crucial when it comes to duties to support children and your rights to visiting those children.

Texas Family Code Section 101.0015 defines alleged father as a man who “alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.”  So, if you think that you are the father of a child but it has not been concluded by court ordered genetic testing—then you are an alleged father.  We see this type of scenario come up in situations such as cases involving the Attorney General’s Office of Texas.  If a woman petitions the Attorney General’s Office for child support, then that agency will file a lawsuit and have all of the alleged fathers served.  It is then your duty to ask for genetic testing if there is any doubt in your mind about whether or not you are the father.  Once genetic testing is completed and paternity is established, you then become an adjudicated father.   Adjudicated father is defined in Texas Family Code Section 160.102(1) as a man who is determined to be the father of a child by the Court.  Therefore, once your paternity is established by results of genetic testing then the Court will name you as the father and proceed forward with child support, visitation, etc.

In contrast, Texas Family Code Section 160.204 defines a presumed father as follows:

(a) A man is presumed to be the father of a child if:

(1) he is married to the mother of the child and the child is born during the marriage;

(2) he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(3) he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(4) he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

(A) the assertion is in a record filed with the bureau of vital statistics;

(B) he is voluntarily named as the child’s father on the child’s birth certificate; or

(C) he promised in a record to support the child as his own; or

(5) during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

(b) A presumption of paternity established under this section may be rebutted only by:

(1) an adjudication under Subchapter G1; or

(2) the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305

As you can imagine, we see this type of scenario in a divorce situation.  It becomes a contested issue when the wife has an affair and becomes pregnant—many men fall into the trap of thinking that they do not have to do anything because the child is clearly not their biological child.  However, that is an unfortunate misconception per the Family Code Section listed above.   You must ensure that you are not adjudicated the father of the child. Also, you cannot get divorced while your wife is pregnant with the other child.  This is because you must go through the genetic testing to prove you are not the child’s father.

Determining which type of father you are is only one of the tasks of our family law team here at Guest & Gray.  Contact us to schedule your consultation today.  We look forward to helping you in your family law case.