On May 12, 2011, a new law became effective governing mistaken paternity. Mistaken paternity-also known as paternity fraud-occurs where, because of mistake or fraud, a court has held a man to be the father of a child who is not his biological child and, more important, required the man to pay child support.
In Texas, there is a four-year statute of limitations for challenging paternity. Until the new law went into effect, if mistaken paternity was not timely identified and legally challenged, Texas law prohibited a later paternity challenge by the child's presumed father. As a result, many victims of paternity fraud have been saddled with unalterable child support obligations even though the identity of the child's biological father eventually came to light.
The new law-which effectively is an amnesty program-provides a procedure for victims of paternity fraud to challenge their alleged paternity even though the four-year limitations period may have run. To take advantage of the new law, a man must file a paternity challenge before September 1, 2012. After September 1, 2012, a man may challenge paternity no later than the first anniversary of the date on which he first learned that he is not the child's biological father.
Only certain situations fall within the new law-specifically, where there was no genetic testing and (i) a man was held by a court to be the father of a child, or (ii) a man signed an acknowledgement of paternity based on misrepresentations by the mother that he is the child's father. Paternity, however, may not be challenged under the new law if (i) the man adopted the child, (ii) the child was conceived by assisted reproduction agreed to by the man, or (iii) the man is the child's intended father under a gestational agreement approved by a court.
The Process
The process of challenging paternity consists of several steps.
Step No. 1. If a man is qualified to take advantage of the new law, he must first file a petition with the court requesting that the parent-child relationship be terminated. The petition must allege sworn facts showing that (i) the man is not the child's biological father, and (ii) the man signed an acknowledgment of paternity or previously failed to contest paternity because of his mistaken belief that he is the child's biological father based on misrepresentations made by the child's mother. The petition must also be served on the child's mother.
Step No. 2. The court will then hold a pretrial hearing to determine whether the sworn allegations in the petition establish a base line case for terminating the parent-child relationship. The child's mother must be notified of the hearing and may attend and be heard. If the court determines the claims in the man's petition have merit, the court will order the man and the child to undergo DNA testing.
Step No. 3. If the results of the DNA testing confirm that the man is the child's biological father or do not exclude the man as the child's biological father, the court will deny the man's request for termination of the parent-child relationship.
Step No. 4. If, on the other hand, the results of the DNA testing exclude the man as the child's biological father, the court must enter an order terminating the parent-child relationship from that point forward.
An order terminating the parent-child relationship ends the man's obligation to pay child support for periods after the date the order is entered. The court's order, however, does not affect the man's child support obligations for periods before the date the order is entered. Nor will the order extinguish the man's obligation to pay interest on back child support even if the interest accrues after the order is entered.
At any time before the court enters the order, the man may request that the court also order possession of or access to the child by the man after entry of the order. The court may order such access to the child only if the court determines that denying the man's request would significantly impair the child's physical health or emotional well-being. The court also may require the child or any party to the proceeding to participate in counseling with a family therapist, as well as designate the party responsible for paying the cost of such counseling.
You should be responsible for financially supporting a child only if you are the child's biological father or you agree to do so with full knowledge of all of the facts. If you believe you are the victim of mistaken paternity or paternity fraud, call Sonya Coffman. Because ... family matters.