Articles Posted in Paternity

Are you facing a divorce with your spouse and you are concerned that you are not the father of your child?  You have probably always had that feeling (given your spouse’s cheating history) that you are not the child’s biological father but you just have never acted on that feeling.  However, now that you are facing a divorce you feel that it is important to raise this as an issue and deny your paternity.  Absent addressing all of the issues that can arise with a denial of paternity, you need to know what can happen in the interim while the case is pending.  You may not be the biological father, but you still may be the presumed father.

What is a presumed father?

You are the presumed father for all legal purposes if one of the following is true: you are married to the mother and the child was born during the marriage; you married the mother before the birth of the child even if the marriage could be invalid; you married the mother before the birth of the child and your name is on the birth certificate.  This means, even if you are not the biological father of the child you are the father in the eyes of the law.  Therefore, the judge can make orders according to that legal fact and most likely will do so.

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:

Are you married and your wife has been unfaithful and now she is pregnant?  Did your ex-girlfriend call you and tell you that she had a child and it is yours?  If you are not sure that you are the father, you absolutely need an attorney.

How this issue can arise and what the law says:

If you are filing for divorce for a series of reasons, namely the adultery and resulting pregnancy, you want to be sure that you are not adjudicated the father of this child.  Reason being, in Texas all children born during the marriage are assumed to be products of the marriage and therefore, you are the presumed father.  So, you will need to make sure that if you have any doubts that you plead for a paternity test.  If it comes back negative and you are not the father, you will want to ensure that you are not ordered to be the father of this child.  Many men fall into the trap of not being the father, but the order states otherwise and therefore they are on the hook for child support for a child that is not biologically theirs.