Paternity

 

Paternity

The issue of paternity can often be much more complex than simply determining who is the biological parent of a child. Depending on the situation, whether you signed an acknowledgement of paternity at the hospital, whether you were married when the child was born, and various other circumstances, you could very well be the presumed father of a child that you are sure is not yours. The important implication to this is that you could end up owing child support, even if you are not the biological father of a child.

It is important when you feel paternity might be an issue, whether you want to establish someone else as the father of your child or whether you want to avoid being the presumed father of someone else’s child, that you consult an attorney who is knowledgeable in the area to advise you on what the best course of action is. Do not make assumptions about what the court may or may not do. It is much easier to fight something BEFORE the court enters an order rather than modifying it afterward.

How is paternity established?

Paternity may be voluntarily established by agreement of both the mother and the father of the child. The parents can sign an Acknowledgment of Paternity (AOP), which becomes a legal finding of paternity when it is filed with the Texas Vital Statistics Unit. If the mother or alleged father is not sure about the paternity of the child, neither should sign an AOP. Paternity should be established through the courts.

 

What happens if the father signs the Acknowledgement of Paternity?

Effective September 1, 1999, Texas law states that a biological father will become the legal father if both he and the mother sign an AOP. This makes him legally responsible for paying child support if he lives apart from the child and enables the court to grant him visitation or custody. In order to obtain child support and visitation rights that are enforceable, a parent must go to either a child support office or a private attorney.

 

How does paternity establishment affect custody and visitation?

Each parent has the duty to financially and emotionally support his or her child. Each parent is presumed to possess the right to custody or visitation. If the parents cannot agree, custody, child support, and visitation will be decided by a court. Both parties must obey the court order. One parent cannot refuse to pay support because the other parent is refusing visitation and vice versa.

 

If an unmarried father is already providing support, is it necessary to establish paternity?

Yes. Even though the child’s father is providing support, he may change his mind, become disabled, or even die. In most cases, unmarried parents can ensure certain benefits for their children only if paternity has been established.
Children who are supported by only one parent often do not have enough money for even basic needs. Every child is entitled to financial support and other resources from both parents.

The custodial parent, the child, and the child’s doctor need to know whether the child has inherited any diseases or disorders that may not be detected at birth or in childhood. Children can receive better medical treatment if doctors know the full medical history of the family.

If paternity has been established, a child has a legal father and will have the possible right of inheritance from both parents. The child may also be eligible for other benefits such as Social Security, medical insurance, life insurance and veteran’s benefits.

 

What if the mother is married to someone else at the time of the child’s birth or the baby is born within 300 days of the date of her divorce?

If the mother is married to someone other than the bio¬logical father at the time of the child’s birth or the baby is born within 300 days of her divorce from a man who is not the biological father, that man is the presumed father. The biological father cannot become the legal father by signing the AOP until a presumed father, if any, signs the Denial of Paternity, which is part of the AOP form. If the Denial is not signed, either biological parent can open a case with the Attorney General or establish paternity through the courts.

 

What if the mother is not sure who the father is?

If the mother applies for services or is referred to the Child Support Division to establish paternity, she will be asked questions about men who may have fathered the child. It is very important for the mother to provide as much information as she can to help determine the father’s identity.

Paternity may be established even if the father is still in school or if he lives in another state.

 

What if the father does not believe it is his child?

He may ask for scientific paternity testing. A court will examine the results of the paternity test and then decide whether the alleged father is the biological father.

 

What if one or both parents change their mind after they have signed the Acknowledgement of Paternity and it has been filed at Vital Statistics Unit?

Anyone who signs the AOP may file a Rescission of the Acknowledgment of Paternity form (VS-158) to rescind the AOP. The form must be filed before the first 60 days after the AOP has been filed with the Vital Statistics Unit (VSU) or before a legal proceeding related to the child is initiated, whichever comes first. After that, a person may challenge the AOP in court under certain situations. Parents must read the AOP carefully before signing it. The AOP is a legal document. Texas Penal Code, Section 37.10, specifies penalties for making false entries or providing false information on the AOP.

 

How does a legal father who questions his paternity end the duty to pay child support?

Texas law requires the man who is alleging mistaken paternity to file a petition to terminate the parent-child relationship. The petition must be filed in accordance with TFC § 161.005(c). The court must hold a pretrial hearing to determine if the man, known as the petitioner, meets the legal requirements for the case to proceed. If he does, the court will order the petitioner and the child to submit to genetic testing. If genetic testing results exclude the petitioner as the child’s biological father, the court shall render an order terminating the parent-child relationship.

 

What are the timeframes for filing a petition to terminate parental rights based on a belief of mistaken paternity?

Before Sept. 1, 2012, a petition may be filed regardless of when the man learned that he is not the child’s genetic father. Effective Sept. 1, 2012, a petition must be filed no later than the first anniversary of the date on which the man becomes aware that he is not the child’s father.

 

What if a man knew at the time that paternity was established (by signing an Acknowledgement of Paternity or through a court order) that he was not the child’s biological father?

Texas law requires that a man state the facts in his petition that show he believed he was the child’s genetic father at the time the acknowledgment was signed or the court order was rendered. At the pretrial hearing, the judge will consider the man’s information and any evidence from an opposing party in deciding if the case should proceed.

 

Once a court terminates the parent-child relationship, when will the man’s duty to pay child support end?

Termination of the man’s parental rights ends the obligation to pay future support, as of the date the order is rendered. The order does not eliminate any child support obligations before that date or any interest that has accrued. The man is still responsible for arrears that accrued up to the termination date, as well as for interest that accrues after the termination date.

 

Can a man have contact with the child after his parental rights are terminated?

If the man, prior to an order terminating his parental rights, requests continued access or possession of the child, the court may order periods of possession or access to the child only if denying continued possession and access would significantly impair the child’s physical health or emotional well-being.

 

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Timothy Hutton

Divorce and Custody Lawyer at Hutton Law, PLLC
Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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