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Paternity and Genetic Testing

It is not uncommon for clients to contact my office requesting genetic or paternity testing due to issues related to children that are of the marriage or outside of the marriage. It is a difficult situation to answer depending on whether the child is born a spouse or another woman not the spouse; and, the time period that has passed since the child is born.
Texas law provides for the genetic testing of an individual to determine parentage, regardless whether the individual voluntarily submits to testing; or is tested under an order of a court or a support enforcement agency.

If the matter is taken to court, a court shall order a child and other designated individuals to submit to genetic testing if the request is made by a party to a proceeding to determine parentage. If a request for genetic testing of a child is made before the birth of the child, the court or support enforcement agency may not order in utero testing. If two or more men are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.

Courts have made a ruling on a request for genetic testing is not a ruling on whether the presumption of paternity has been rebutted. Consequently, it is not a decision on the merits and is vitiated if the underlying suit is nonsuited.

Additionally, a party must be entitled to maintain a proceeding to adjudicate parentage as set out in Texas law before a trial court can order genetic testing to determine parentage. A trial court may not grant an order for genetic testing when requested by an individual who has not made a prima facie showing that he is entitled to bring a proceeding to adjudicate parentage or
disprove the father-child relationship.

A man is rebuttably identified as the father of a child under the Texas Family Code if the genetic testing complies with the law and the results disclose:
(1) that the man has at least a 99 percent probability of paternity, using a prior probability of 0.5, as calculated by using the combined paternity index obtained in the testing; and
(2) a combined paternity index of at least 100 to 1.
A man identified as the father of a child may rebut the genetic testing results only by producing other genetic testing satisfying the requirements of the law that:
(1) excludes the man as a genetic father of the child; or
(2) identifies another man as the possible father of the child.

Except as otherwise provided by Section 160.510 of the Texas Family Code, if more than one man is identified by genetic testing as the possible father of the child, the court shall order each man to submit to further genetic testing to identify the genetic father.

If an individual is not available for genetic testing and if a genetic testing specimen for good cause and under circumstances the court considers to be just is not available from a man who may be the father of a child, a court may order the following individuals to submit specimens for genetic testing:
(1) the parents of the man;
(2) any brothers or sisters of the man;
(3) any other children of the man and their mothers; and
(4) other relatives of the man necessary to complete genetic testing.

However, a court may not render an order under this section unless the court finds that the need for genetic testing outweighs the legitimate interests of the individual sought to be tested.

A proceeding to adjudicate parentage may be maintained by:
(1) the child;
(2) the mother of the child;
(3) a man whose paternity of the child is to be adjudicated;
(4) the support enforcement agency or another government agency authorized by other law;
(5) an authorized adoption agency or licensed child-placing agency;
(6) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, is incapacitated, or is a minor;
(7) a person related within the second degree by consanguinity to the mother of the child, if the mother is deceased; or
(8) a person who is an intended parent.
After the date a child having no presumed, acknowledged, or adjudicated father becomes an adult, a proceeding to adjudicate the parentage of the adult child may only be maintained by the adult child.

The most important aspect of paternity or genetic testing is time. It is very important to pursue the genetic testing as soon as the issue of the paternity of a child is suspected. The passing of too much time can and will bar an individual from claiming that he is not the biological parent of a child.

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