FindLaw KnowledgeBasePublished: 2013-02-21
Imagine the pain of discovering you may not really be the father of a child you thought was yours and for whom you are legally the parent. In Texas, the law provides a way for such a man to learn the truth through the court system and set things right.
The Texas court proceeding is one for “mistaken paternity,” sometimes called “paternity fraud.” The only person with the right to bring a mistaken paternity action is a legal father who is questioning his parentage when no DNA testing was ever done. This law addresses the particular situation when a man mistakenly believes he is the father of a child because he relied on “misrepresentations,” and thereafter either legally acknowledged paternity or was adjudicated to be the father.
Petition for mistaken paternity
The man must file a petition with the court describing the reasons he now believes he is not the genetic father and the history of why he mistakenly believed that he was. In essence, the petition asks the court to terminate the parent-child relationship.
A couple of situations exclude a man from petitioning for mistaken paternity, however:
- When the man adopted the child
- When the child was “conceived by assisted reproduction”
- When the man entered into a valid gestational agreement to be the father
The petition must be filed within one year of the date on which the man learned that he might not be the biological father.
In response to the petition, the court will schedule a pretrial hearing to consider whether the man’s case has merit. If the court is satisfied, the man and the child are ordered to undergo genetic testing. If the test results do not exclude the man as the father, the petition is denied and the parent-child relationship still legally exists.
If the man is proven not to be the biological father, the petition to terminate the parental relationship will be granted. All future child support obligations will become void, but previously accrued child support still due and owing is still considered a legal obligation.
Counseling and visitation
The mistaken paternity law has two important provisions that potentially protect the well being of the child — and of the presumed father — should the termination of their legal relationship be difficult or even traumatic. One, the court may order that either of them have counseling; and two, the man may request before the order of termination is entered that he still be granted parenting time with the child, even if their legal relationship has been severed. The court may grant the request for possession of or access to the child if it finds that otherwise the child’s “physical health or emotional well-being” would be “significantly” impacted.
Texas mistaken paternity petitions have specific legal requirements, including notice and deadline provisions, and it is in a potential petitioner’s interest to consult with a Texas family law attorney with experience in such matters.