On Children Born During the Marriage But Not of the Marriage

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From time to time, clients come into our office with the following scenario: “I have been married to my husband for 5 years. We have no children together. Our relationship has been up and down, and we were separated for about 3 months last year. During that time, I had a relationship with another man and I became pregnant. I was not sexually active with my husband at the time. However, my husband and I reconciled so I ended it with the other man. My husband believes that our son is his own. I have not told my husband about the other man. Now, we are having problems again and I have filed for divorce. I want to legally establish who the father of my son is and I want to tell my husband the truth about our son. What can I do?”

As a divorce attorney, my response is: First of all, your husband is presumed to be the father under Texas Family Code (TFC) §160.204 (a)(1) which states: “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.” Since your husband is the presumed father, the adjudication of paternity must occur within four (4) years, because under TFC §160.607 (a), “a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth (4th) anniversary of the date of the birth of the child.” This presumption may be rebutted only by adjudicating the child’s paternity. Under TFC §160.305 (a): “a valid Acknowledgment of Paternity filed with the Bureau of Vital Statistics is the equivalent of an adjudication of paternity of a child and confers on the acknowledged father al rights and duties of a parent.” The Acknowledgment of Paternity form can only be obtained from a certified entity. You can find a certified entity located near you by calling the Paternity Opportunity Program at 1-866-255-2006. The Acknowledgement of Paternity form must be completely filled out and must include a valid entity code before it will be accepted. In Houston, Harris County, Texas, some courts will not accept the Acknowledgement of Paternity form, instead requiring the alleged fathers and the child to undergo DNA testing. In paternity by estoppel cases, the Court may deny genetic testing and find the presumed or acknowledged father to be the father of the child. The most common situation in which the paternity by estoppel doctrine should be applied arises when a man knows that a child is not, or may not be, his genetic child, but the man has affirmatively accepted his role as child’s father and both the mother and the child have relied on that acceptance. Or, the man may have relied on the mother’s acceptance of him as the child’s father and the mother is then estopped to deny the man’s presumed parentage. Once the child’s paternity has been established, issues of child support, possession, access, and conservatorship can be resolved. You and both men must be parties in the Petition to Establish the Parent-Child Relationship (or Establishment of Paternity Suit). Both men may wish to retain their own respective lawyers. If your husband is not found to be the father, the divorce can proceed as if no children were born of the marriage. The biological father will then have the issues of child support, possession, access, and conservatorship adjudicated in the Petition to Establish the Parent-Child Relationship.