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Paternity Issues in a Texas Divorce

In many of the divorce cases that my office accepts, a child has been born during the marriage where the husband is not the biological parent. Usually the mother is not sure about how the matter is handled in a divorce proceedings. It is surprising that in many of the cases, the mother does not understand the necessity of having to execute an acknowledgement of paternity involving the biological parent of the child born during the mother’s marriage to another man.
What is the presumption of paternity?
A man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage; 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; 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; or, 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. The assertion must in a record filed with the vital statistics unit with him voluntarily named as the child’s father on the child’s birth certificate; or he promised in a record to support the child as his own; or 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.
A presumption of paternity established under the Texas Family Code may be rebutted only by:
(1) an adjudication under Subchapter G; 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 the Texas Family Code.
Cases have varied in their rulings regarding presumption of paternity and situations involving common law marriage allegations.
In re O.R.M., 559 S.W.3d 738, 745 (Tex. App.—El Paso 2018, no pet.), an alleged father argued that he proved by uncontroverted evidence the existence of a common law marriage with the mother and, therefore, that he was the presumed father of the children. However, the court found that the couple’s cohabitation for fifteen years and the mother’s reference to the man as her husband was insufficient to prove, as a matter of law, an agreement to be married. Consequently, the court found the alleged father failed to establish the existence of an informal marriage and that he was not presumed to be the father of the children.
In re S.T., 467 S.W.3d 720 (Tex. App.—Fort Worth 2015, no pet.), the court held that parties cannot stipulate to parentage of a child. Husband and wife could not stipulate to husband’s nonpaternity by agreement. A presumption of paternity is rebuttable by adjudication under Tex. Fam. Code. ch. 160, subch. G, or filing of a denial of paternity in conjunction with an acknowledgment of paternity by a third person.
In re X.C.B., No. 14-08-00851-CV, 2009 WL 2370911 (Tex. App.—Houston [14th Dist.] July 30, 2009, pet. denied) (memo. op.) an alleged father argued that he considered himself to be the common-law husband of the children’s mother, which entitled him to a presumption of paternity. However, the presumption of paternity can be rebutted by genetic testing excluding the husband as the father of the children pursuant to Tex. Fam. Code § 160.631. Because the genetic tests excluded him as the father, and he failed to produce other genetic testing showing him to be the father, the presumption under Tex. Fam. Code § 160.204 was rebutted.
What is an Acknowledgement of Paternity?
The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man’s paternity.
An acknowledgment of paternity must:
(1) be in a record;
(2) be signed, or otherwise authenticated, under penalty of perjury by the mother and the man seeking to establish paternity;
(3) state that the child whose paternity is being acknowledged:
(A) does not have a presumed father or has a presumed father whose full name is
stated; and (B) does not have another acknowledged or adjudicated father;
(4) state whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing; and
(5) state that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances.
An acknowledgment of paternity is void if it states that another man is a presumed father of the child, unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the vital statistics unit; states that another man is an acknowledged or adjudicated father of the child; or falsely denies the existence of a presumed, acknowledged, or adjudicated father of the child.
A presumed father may sign or otherwise authenticate an acknowledgment of paternity.
In re J.A.C., No. 02-15-00554-CV, 2016 WL 3854215 (Tex. App.—Dallas July 13, 2016, no pet.) (mem. op.). Fourteen-year-old twins sought to terminate the parent-child relationship with their acknowledged and adjudicated father. The appellate court held that the father’s signing of the children’s birth certificates did not satisfy the requirements of an acknowledgment of paternity under Family Code chapter 160, subchapter D.
What is a Denial of Paternity?
A presumed father of a child may sign a denial of his paternity. The denial is valid only if an acknowledgment of paternity signed or otherwise authenticated by another man is filed; the denial is in a record and is signed or otherwise authenticated under penalty of perjury; and the presumed father has not previously acknowledged paternity of the child, unless the previous acknowledgment has been rescinded or successfully challenged; or been adjudicated to be the father of the child.

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