The advent of affordable over-the-counter DNA testing has become a way for people to learn about their heritage and their medical history. But readily available DNA testing has also caused considerable confusion as well.
Without realizing the ramifications, many individuals happily take DNA tests hoping to learn more about their background, and implore their families to do the same thing. Many people have discovered that the man they believed was their “father” really wasn’t. Many men have discovered that their children born during a marriage were actually the biological children of someone else.
When a couple files for divorce, the court assumes that the husband is the father of the children, known as the “presumptive father,” even if the couple were not together at the time of the child’s birth. When there’s a question to answer about paternity, the court has a process for determining the true father’s identity.
Three Father Types
In Texas, there are three types of fathers:
- The presumptive father, one that a woman has named as the father or is/was married to
- The acknowledged father, who signs a document accepting the paternity of a child
- The adjudicated father, who becomes the father after DNA testing and a court order. A father can be adjudicated at any time as long as no other man is legally named to be the child’s father, and can be done involuntarily when a man disputes paternity.
A man who is not married to the child’s mother does not have any parental rights without establishing himself as the child’s father.
“Order of Filiation” is a frequently used term to describe the court order that establishes paternity. In Texas, it is known as an adjudication of paternity, and legally declares the identity of the child’s father after the results of a court-ordered DNA test.
Paternity Orders In A Divorce
As we mentioned, the husband is generally considered to be the father of any children born during a marriage, even while the couple separated. As is the norm, the father would be responsible for child support, and would be required to either work out a parenting plan and visitation arrangement or have one created by the court.
If a husband has reason to believe that a child is not his, he can raise the issue by filing a paternity suit to rebut the presumption. There are specific rules for establishing paternity if the biological father is someone other than the woman’s husband. The court will most likely order genetic testing of the named father, or if necessary, the father’s relatives, to determine biological paternity.
Should the husband not want to be the legal father, and can prove that he isn’t the genetic father, the paternity issue will have to be resolved before the divorce can proceed. A genetic test will also be ordered. Some county courts may require a divorce petitioner to establish paternity prior to filing for divorce.
Why Challenge Paternity?
If a man discovers that he may not be the father of a child but does not challenge it in a paternity suit, he will be required to continue to pay child support to another man’s child.
In response to this frequent problem, Texas Senate Bill 785 amended the Texas Family Code to allow a man to challenge the filial relationship if he were misled into signing an Acknowledgement of Paternity. The law also allows men to challenge paternity if they were adjudicated without a DNA test, or if they were named as the father and didn’t previously refute paternity. Although the statute of limitations was four years after birth, the man has one year after learning the facts of a child’s paternity to file a challenge.
Legal Help For Divorce And Paternity Related Issues
For more than 20 years, Wendy L. Hart is an experienced family law attorney helping people throughout Tarrant County with visitation and other rights with their children. We work to help you through any family law issues you have, and that your rights are protected. Visit our Mansfield office at 2363 HWY 287 N, Suite 108, use our online contact form, or call us at (817) 842-2336. We’re ready to help.